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Federal Securities Law Unconstitutionally Deprives Defendants of Jury-Trial Rights While Granting Those Rights to Itself
The Seventh Amendment to the U.S. Constitution guarantees the right to a jury trial in civil suits filed in federal court. Federal officials have never liked it when the target of a federal enforcement action insists on a jury trial; they apparently fear that...
CDC Does Not Have Power to Regulate Access to Courts and Its Order Needs to Be Struck Down
NCLA has filed a class-action lawsuit on behalf of housing providers who have been frozen out of state court under penalty of criminal sanction by the Center of Disease Control’s unlawful order preventing access to courts to recover property when a tenant...
Should Federal Courts Defer to State-Agency Interpretations of Federal or State Law?
Must federal courts defer to a state agency’s interpretation of federal law? Two Eighth Circuit judges say yes. Eleven Ninth Circuit judges largely ignore the issue. Only Eighth Circuit’s Judge David Stras says no. Judge Stras is right. The Eighth Circuit has...
Biden Title IX Order
On International Women's Day, President Joe Biden issued an executive order “direct[ing] the Department of Education (ED) to review all of its existing regulations, orders, guidance, and policies” for the ostensible purpose of “guarantee[ing] an educational...
Flattening the Curve on Our Civil Liberties: Are Courts Social Distancing from the Constitution?
We just observed the first anniversary of “15 days to flatten the curve.” Since then, we’ve learned at least two important lessons. First, there’s no quick fix to flattening an infection curve. Second, the virus may be more resilient than our civil liberties....
The Real Cost of CPSC’s Hidden Law to New Parents
Photo: NCLA client Lisa Milice and her baby As I have recently found out, there are many things to worry about as a new or expecting parent. The joy of welcoming a new life into the world can easily be eclipsed by a wide range of concerns. Not to mention, the nearly...
Cancel Culture on Trial
An important case will be heard this term at the Supreme Court out of the Ninth Circuit—and the stakes could not be higher. Americans for Prosperity Foundation v. Becerra challenges a California Office of Attorney General’s lawless demand for non-profits’ donor...
One Mother’s Fight to See the Law
When mother-to-be Lisa Milice was researching nursery products to buy for her first child, she ran into a paywall. The problem was that, although the U.S. Consumer Product Safety Commission adopts binding safety standards for infant and nursery products,...
How Executive Branch Can Override Congress’ View of Criminal Law in Court
Let’s try a thought experiment. Imagine a criminal law that says, “It’s a felony to do bad things.” That’s it. That’s the whole law. There’s no further explanation. I have a pretty solid understanding of what I think are “bad things.” I guarantee, however, that...
Axon Suffers a Defeat in the 9th Circuit but Both Majority and Dissent See the Problem
We have discussed Axon v. FTC before and followed it closely since its inception. On January 28, 2021, the Ninth Circuit gave us more to consider. First, a recap is in order. Axon Enterprise, Inc. (Axon) is a corporation that makes law enforcement equipment...
The Substantial Evidence Standard of Reviewing Administrative Fact-Findings Is Unconstitutional
Federal court appellate rules (and most state appellate and high courts) require party briefs to include a “standard of review” section (Federal Rule of Appellate Procedure 28(a)(8)(B)). Lawyers tend to pay little, if any, attention to this section. Usually, a...
Judges Swallowing Their Whistle
There’s a frustrating phenomenon in sports where referees will “swallow their whistles” in a close game. At a pivotal moment, a referee will fail to call a foul to avoid the appearance that the refs determined the outcome of the game. The logical fallacy the...
Justices Skeptical of FTC Claim of Vast Powers of Disgorgement in AMG Capital Management, LLC v. FTC
The Supreme Court heard argument in AMG Capital Management, LLC v. FTC this week. The FTC can’t be happy with how it went. On the Covid-required Zoom-call format, Justice Roberts can and does keep much closer rein on time and interruptions. With all the...
Local Governments Blew a Hole in Their Budgets: They Intend to Patch It by Taking Your Property Rights
Anyone with a lick of sense knew that smothering our economy would severely curtail the ability of local governments to generate sales tax revenue. Whether the doors of restaurants and other businesses are shut tight and sealed, such as in New York City and Los...
Midnight Regulation: The State of Regulations thru January 20 is Uncertain
Just as the cherry blossoms bloom here every spring, another regular D.C. occurrence is blooming—midnight regulations. A product of the modern administrative state, the midnight regulation period is the time between a presidential election and the inauguration...
Packing the Court: A Bad Idea Then and Now
The issue of packing the Supreme Court is generating a lot of attention these days—often of the comic sort, if you enjoy watching Democratic candidates from President-elect Biden to the current Georgia runoff candidates bob and weave while not answering the...
En Banc Third Circuit Knocks the U.S. Sentencing Commission Down a Few Pegs
Determining an appropriate punishment for criminal convictions is a delicate business. Traditionally judges have had a lot of latitude in figuring out what makes the most sense based on a particular case. But judges are people too, and they carry the same...
I’ve Got Plenty to Be Thankful For
Hello! I’m Michael DeGrandis. I’m Senior Litigation Counsel at the New Civil Liberties Alliance, and this...
How Big is Big Government? Reasons Every American Should Care About the Administrative State
Author: NCLA Legal Intern Tabitha Kempf Every freshman law and policy aficionado who has spent any amount of time in the ring has almost certainly encountered lively talk about the Administrative State and its vast consequences for our nation. On one hand,...
What Do Burger King, Ford Motor Co., and NLRB Have in Common?
Author: NCLA Legal Intern John Bugnacki Can a court force you to defend yourself against a lawsuit thousands of miles away in a place where something you made, created or said just happened to end up? The Supreme Court may answer this critical question in Ford...
Senate Judiciary Committee Supreme Court Confirmation Hearings: Two Guideposts
On November 2, 2020, Justice Amy Coney Barrett participated in her first two oral arguments as an Associate Justice of the Supreme Court of the United States. Over the next few decades, she will get to ask incisive questions during oral argument to help her...
Bad Regulations Destroy Our Environment
One fundamental problem with having agencies in Washington, DC issue thousands of regulations that apply to everyone and everywhere in the country is that there is simply no way for them to consider the thousands of ways in which their one-size-fits-all...
An Insidious Consequence of the FTC’s Use of Section 13(b) Injunctions: Denial of Counsel
I’ve previously written on the Supreme Court’s taking two cases involving the extent of the Federal Trade Commission’s (FTC) ability to seize property of all kinds under Section 13(b) of the FTC Act. Those cases, FTC v. Credit Bureau Center, LLC, CA19-825, and...
Trump’s “Regulatory Bill of Rights”: OIRA’s Implementing Memorandum is Heading in the Right Direction
Over the summer I wrote about Executive Order 13924, which attempts to lessen the administrative burdens faced by private individuals and businesses by reining in the administrative state. In addition to directing agencies to rescind, modify, or waive...
Some Thoughts on the Nomination of Judge Amy Coney Barrett
So, we have a nominee for the Supreme Court, Amy Coney Barrett, and, as with all such nominations, the prognosticators, pundits, and public want to know how this candidate will approach the issues they believe the Supreme Court is most likely to hear in coming...