21 September 2019

CATO Institute Fun and Games

Back when I was much more active on this blog I had a semi-relationship with CATO. I think they viewed CrimLaw as a pretty decent place to get some of their ideas and papers publicized. As for me, I felt obligated to support any organization which adopted a character from a Pink Panther movie as their raison d'ĂȘtre.

Anyway, the good people over at CATO still send me notices about various seminars that they have going on and I finally bit and went to last week's seminar on Constitution day. I cleared my calendar for the first part of the week, reserved a room at a Bed and Breakfast in Loudoun County, woke up Monday morning and started driving. 

Eight hours and two traffic jams later, I arrived at a Bed and Breakfast in the middle of nowhere and hunkered down for a night of finishing off a post on my other blog about salaries and realities in professional women's sports. In the morning I got up and headed into D.C. It should have taken an hour. So, I got to CATO two and a half hours later - just in time to miss the opening remarks.

The first speaker addressed the sole issue of the day that had anything to do with criminal law: Timbs v. Indiana. That one made a splash amongst the legal community where I practice because it characterized civil forfeitures against those who do criminal acts (most commonly drug dealers) as a fine, subject to the ban on "excessive fines" under the 8th Amendment. Listening to Brianne Gorod talk it became clear this case was basically just about whether the 8th Amendment was incorporated under the 14th. It was the first time it broke through into my conscious that Indiana apparently never argued it was a civil taking instead of a fine.1 That's interesting. I long ago learned not to expect practical instruction from this kind of seminar, but I did find myself wishing for some practical guidance on (1) whether there an argument that forfeitures are not fines that just wasn't raised by Indiana, and (2) what the ratio is of provable drug dealing to amount of forfeiture before it is excessive.2

The lecture by Eric Baxter on the Court's shift in American Legion v. American Humanist Association away from the Lemon Test to "retaining established, religiously expressive monuments, symbols, and practices carries a presumption of constitutionality" was interesting. The Court suggested that the presumption could be overcome by showing discriminatory intent or an effort to deliberately disrespect other religions or the irreligious. It will be interesting to see where this shift carries American jurisprudence. 

The rest of the day was filled with presentations on mildly interesting cases, but nothing so cool or relevant that they need to be discussed here. And then came the panel discussing upcoming cases for the pending term. Elizabeth Slattery raised an interesting case out of New York where the city basically forebade the carrying of a legally owned pistol outside of one's residence except to seven firing ranges in the city. As was quickly pointed out, the law was so draconian that a gun owner couldn't legally take their gun with them when they moved their residence. The law was challenged and the city won in the trial court and the 2d Circuit. However, once the Supreme Court took the case the city purposefully changed the law so that they could claim the plaintiffs had gotten what they wanted and the case would become moot - pretty clearly done because they realized the law was unconstitutional and they were going to get trounced in the Supreme Court.3  So now, the city's going to argue that the Court should drop the case and the plaintiffs are going to argue "So, what do we do when they put the law right back in place a day after you dismiss for mootness and point to the 2d Circuit's decision as proving that it's constitutional?" It'll be interesting how the Court will react to such a blatant attempt to manipulate its procedure to avoid a decision on the merits.

I didn't stick around for the final speech because I was trying to get back to Loudoun in time to meet up with an old buddy. It didn't work out because Google Maps ran me around D.C. for an hour before I finally escaped. It kept telling me to take turns that would have required my car to helicopter over three lanes of traffic and then demanding I do u-turns which would have required me to spin the car around like I was one of the Duke boys. By the time I got back to the Bed and Breakfast it was well and truly dark and I had to drive home the next day so I ended up just hunkered down.

And then came the nine hour drive home the next day in which I purposefully chose to drive secondary roads for the scenery - which sounds like a great idea until you're in the middle of nowhere and your car has been pinging "LOW GAS" at you for the last ten miles . . .  But finally, I made it back home where people don't wear ubiquitous, overly expensive dark suits and have phones glued to their ears. Home sweet home.

It was an okay experience all around, but unless I get drafted into service as a presenter (unlikely for a poor country bumpkin lawyer) I think I'll watch the online stream next year.


1 I've heard this rationalization in Virginia for a long time and occasionally wondered how it doesn't run afoul of the takings clause in the 5th Amendment - not enough to research it thoroughly though.

2  Yes, I know that there will probably never be bright line, easily applicable standard here. This sort of thing practically begs for a totality of the circumstances analysis. Still, a man can dream.

 There has been a feeling for a while now that the governments and lower courts in anti-gun areas such as NYC, Chicago, D.C., and California have been blatantly ignoring the Supreme Court's direction on firearms and allowing regulations, ordinances, and statutes which render the ownership of firearms a mere potentiality. You're going to have to do your own research to confirm or deny that proposition.

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