• Byrd v. United States [SCOTUSbrief]
    Articles,  Blog

    Byrd v. United States [SCOTUSbrief]

    The parties in this case are Terrence Byrd and the United States government. In September of 2014, Byrd’s at-the-time girlfriend and mother of his children had rented a vehicle from Avis, a rental car company. Byrd had been granted permission from Latasha Reed and given the car keys to drive the vehicle. Byrd had been driving on a highway when an officer pulled Byrd over for a traffic violation and asked for his license and the rental car agreement. In the rental car agreement, Byrd was not listed as an authorized driver. The officer then asked Byrd if he had any contraband within the vehicle. Byrd conceded that he did…

  • Right to Tweet? Social Media & Employment Law [POLICYbrief]
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    Right to Tweet? Social Media & Employment Law [POLICYbrief]

    Social media has definitely changed the workplace and the relationship between employers and employees. The legal rights for at-will employees, this is becoming a trickier area for both employees and employers. The days of, “Oh, it’s at-will employment, and as a private sector employee, you check your First Amendment rights at the door when you come in here,” those days are gone. The National Labor Relations Act provides almost all employees the right to engage in concerted, protected activity, and I always say that that kind of gives employees the right to moan and complain about the workplace amongst each other. So if they’re talking to other employees it’s concerted…

  • Regulating Rideshare: Uber & Lyft in Austin, TX
    Articles,  Blog

    Regulating Rideshare: Uber & Lyft in Austin, TX

    I moved my family to Austin in 2000. The population since we got here has doubled. Austin has, for the size of the city, one of the most mediocre transit systems in America. Traditionally, regulation has been put in place for all the best of intentions. I’ve been a Council Member since January of 2015. My concern was getting in and saying, look, let’s get some technical solutions to fixing the traffic congestion. It’s meant to lower prices or offer us more choices or provide higher quality goods or solve information problems. But instead the new City Council chose to focus on Uber and Lyft. When Uber and Lyft first…

  • Articles

    Can Cities Sue Oil Companies for Climate Change? [POLICYbrief]

    A large number of municipalities, counties, and even one state have recently sued the oil companies, some coal companies, some gas companies, all essentially parts of the fossil fuel industry saying two things. One, that you knew when you were marketing these products back in the 1960s and 1970s, and into the 1980s, that the effects of climate change would follow upon their use. And second, you didn’t tell anybody. The public nuisance lawsuits in climate change started around 2017 when you started seeing municipalities bring lawsuits against oil companies to hold companies liable under novel theories of public nuisance claims. Private nuisance is brought by a private plaintiff as…

  • Key Cases on the Commerce Clause [No. 86]
    Articles,  Blog

    Key Cases on the Commerce Clause [No. 86]

    So the Commerce Clause has been litigated in the Supreme Court probably more often than any other structural provision of the Constitution. And the most important early case was called Gibbons against Ogden and it involved a state law that granted a monopoly to people operating a steamship across the Hudson River between New York and New Jersey. And the Supreme Court held that a federal law, which licensed a competitor, trumped the state law and thus the the national government’s ability to be able to promote commerce or protect commerce against local monopoly legislation was upheld. This can be seen as a very nationalistic decision in a sense, but…

  • Chevron: A Gift or A Burden for Lower Courts? [No. 86]
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    Chevron: A Gift or A Burden for Lower Courts? [No. 86]

    Prior to the Chevron doctrine, the way federal courts handled agency legal interpretations was a multi-faceted inquiry that focused on what kind of legal interpretation was it. Was it a pure or abstract legal interpretation? Was it the application of law to particular facts? If the second, it would presumptively get a lot of deference. Those set up presumption, which could then be overcome in either direction, plus or minus, more deference or less deference. So you’ve got this 15-factor inquiry that you’re supposed to use in each case to decide whether these baseline rules of deference should be altered up or down in any direction. You can understand why…

  • Articles

    Can Fake News Be Regulated? [POLICYbrief]

    In 1898, that’s a long time ago, Spanish-American War was started by newspapers crying, “Remember the Maine!” The Maine was an American ship that exploded in Havana Harbor and the newspapers quickly, particularly the New York World, started pushing article saying, “We need to have a war with Spain over this. Remember the Maine, they blew it up.” That was utterly fake news. It wasn’t true and it led to a war. So, fake news is not a new thing. The First Amendment does not allow the government to regulate what companies or people, social media sites, or newspapers, or television stations, doesn’t give them the authority to tell them…

  • Why Do We Need a Structural Constitution? [No. 86]
    Articles,  Blog

    Why Do We Need a Structural Constitution? [No. 86]

    Why structure? Why not instead just come up with a document that lists 873 rights of the people and go from there? You could do it that way. You can have a document that lists 873 rights of people. You could even have a document that lists fewer rights, but does so in much more flowery language. You could have a whole series of provisions that say, “Do good, do real good. Don’t do bad. Do great things.” All of that could be written down and people could look at it and cheer. The problem is how is it actually going to work in practice? Constitutions, like everything else in…

  • What experiences shaped the Founders’ perception of executive power? [No. 86 ]
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    What experiences shaped the Founders’ perception of executive power? [No. 86 ]

    So, in 1776, the framers of the American colonies and of the Declaration of Independence were very opposed to executive power. And in fact, most of the Declaration of Independence is a list of grievances, all directed at the king and things that the king had done. The colonists didn’t believe parliament had any power over them because they weren’t represented in it, but they did think the king was their chief executive, and the list of grievances in the Declaration of Independence expresses their disagreement with the idea that the king has what’s called prerogative power. That is to say a power to legislate to fill in the gaps…

  • Is Roman Law a primitive system? [No. 86]
    Articles,  Blog

    Is Roman Law a primitive system? [No. 86]

    It’s important to understand that when you’re talking about Roman law it may be an ancient system but it is not a primitive system. If you were to try to compare Roman law to Roman science, if you were trying to figure out whether or not you wanted to study the theory of evolution or the theory of reproduction or the theory of heavenly bodies using Greek and Roman science you would probably not get very far. If you start looking at the Roman text, it represented an enormous advance in systematization of over every previous system of law anywhere on the face of the globe. Instead of having a…