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Tag: rational basis

May 15, 2018

Braiding hair is not a crime

Earlier this year, I noted that the Eighth Circuit Court of Appeals endorsed extreme deference to the government when it rejected a challenge by hair braiders in Missouri to the state’s requirement that braiders be licensed as a cosmetologist or barber. In Niang v. Tomblinson, the Supreme Court of the United States has the opportunity ...

May 01, 2018

Answering the Minerva Dairy questions at Overlawyered

If you aren’t already a regular reader of Overlawyered, you should check it out. Walter Olson does a magnificent job pointing out and explaining the seen and unseen costs of our legal system. Last week I was excited to see Overlawyered link to our Minerva Dairy lawsuit.* In the days that followed, the comments section ...

February 05, 2018

Court upholds Wisconsin’s irrational butter grading law

The court ruled against Minerva Dairy's claims that the Wisconsin butter grading law violates the Constitution. ...

September 14, 2016

Courts should care about your right to earn a living

Though the rights to free speech and bear arms get all the press, the right to earn a living might be the most fundamental right of all.  The Fourteenth Amendment protects that right—allowing all of us the opportunity to provide for our families by pursuing a lawful vocation.  There was no better advocate for that ...

October 02, 2015

When legislatures violate your rights, who's going to stop them?

Today, PLF urged the Florida’s Second District Court of Appeal to take up its duty to protect individual rights, and to enforce the state constitution’s protections for economic liberty. Occupational licensing has run amok.  As a White House Report recently detailed, nearly a third of Americans need a license to do their job legally.  ...

November 25, 2014

Can courts dismiss “rational basis” cases without hearing evidence?

My latest law review article is available in the new issue of the George Mason U. Civil Rights Law Journal. Entitled "Rational Basis and The 12(b)(6) Motion: An Unnecessary ‘Perplexity,'" the article tries to resolve the confusion that some courts have expressed about how to resolve a motion to dismiss when the lawsuit alleges a constitutional ...

September 16, 2014

Can governments rely on outdated rationales to justify onerous regulation?

In 1952, Emmett Ashford became the first African American umpire in organized baseball and Dwight Eisenhower was elected President of the United States. That same year, the Pennsylvania legislature decided that funeral homes needed to be heavily regulated. Under a 1952 regulation, funeral directors must obtain a license and build expensive "prepar ...

January 17, 2014

Texas Supreme Court will consider case about what “rational basis” means

The Texas Supreme Court has announced that it will consider the case of Patel v. Department of Licensing, which raises the issue of what the “rational basis” test means under Texas state constitutional law. Rational basis, of course, is the test that judges use when deciding whether a restriction on economic freedom is constitutional or ...

July 17, 2013

Facts matter in a constitutional challenge

This week, PLF filed an amicus brief asking the Texas Supreme Court to review Patterson v. City of Bellmead.  The Pattersons are challenging a law that requires a kennel permit for any property owner that has more than four cats or dogs on any single parcel of land.  The Pattersons lost their case after the Texas ...

May 01, 2013

Businesses should have the right to make their case

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 ...

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