The National Law Journal has published my article about a growing problem in federal courts: the tendency of judges to dismiss lawsuits brought by business owners on the theory that they can’t possibly prove their cases anyway, given how biased the courts are against economic freedom. For decades now, federal courts have applied the notion of “rational basis scrutiny” to determine whether restrictions on economic freedom are constitutional or not. The “rational basis” test says that the court presumes a law to be constitutional and requires the plaintiff to prove that it’s not. That’s an unfair rule to begin with, but it’s been getting worse lately, as trial judges have begin dismissing cases without letting the plaintiffs gather the evidence necessary to prove that the laws they challenge are unconstitutional. In the case of Hein Hettinga, for instance, the Court of Appeals said that a trial judge could throw out a case before trial simply because the government said—without any evidence—that the challenged law was constitutional. And in the Virginia Certificate of Need case, the trial court held that evidence of the law’s irrationality was “irrelevant” anyway!
You can read the article here, and a more in depth discussion of the subject here.