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My new Cato Supreme Court Review article on the Supreme Court’s recent decision in Knick v. Township of Scott– an important property rights case that overruled a longstanding  precedent is now available for free on SSRN. Here is the abstract:

The Supreme Court’s decision in Knick v. Township of Scott put a long-overdue end to a badly misguided precedent that had barred most takings cases from federal court. The big issue at stake in Knick was whether the Court should overrule Williamson County Regional Planning Commission v. Hamilton Bank (1985). Under Williamson County, a property owner who contends that the government has taken his property and therefore owes “just compensation” under the Takings Clause of the Fifth Amendment could not file a case in federal court until he or she first secured a “final decision” from the relevant state agency and “exhausted” all possible remedies in state court. The validity of this second “exhaustion” requirement was at issue in Knick. Even after both Williamson County requirements were met, it was still usually impossible to bring a federal claim because procedural rules preclude federal courts from reviewing final decisions in cases that were initially brought in state court.

Part I of this article briefly describes the background of the Knick case and the Williamson County decision that the Court ended up reversing. In Part II, I explain why the Court was right to conclude that Williamson County created an indefensible double standard under which takings claims against state governments were effectively barred from federal court in situations where other types of constitutional claims would not be. Part III explains why overruling Williamson County is justified under the Supreme Court’s admittedly imprecise doctrine on overruling precedent. Justice Elena Kagan’s dissenting opinion is wrong to argue that overruling Williamson County also entails overruling numerous earlier precedents. Finally, Part IV assesses the potential real-world impact of the Knick decision. In many cases, it will make little difference whether a takings claim gets litigated in state court or federal court. In some situations, however, the right to bring a claim in federal court is a vital tool to avoid potential bias in state courts and procedural hoops that subject property owners to a prolonged ordeal before they have an opportunity to vindicate their rights. Claims that Knick will lead to a flood of new takings litigation are overblown. But to the extent that substantial new litigation does result, that is likely to be a feature, not a bug.

Star Trek fans will be happy to know that this may be the first-ever law journal to discuss the subject of changing depictions of Klingon foreheads—in the course of analyzing the notorious (and ultimately unsuccessful) “Klingon forehead” argument put forward by the federal government in their amicus brief in the case (see pp. 158-59 of my article). Sadly, I was not able to include actual pictures of the evolution of Klingon foreheads in the article. But they can be seen here. Prominent takings expert Robert Thomas deserves credit for the analogy between the government’s argument and Star Trek’s “retconning” of Klingon foreheads.

I will be speaking about the Knick decision and my article at the Cato Institute’s annual Constitution Day conference,  on Tuesday, September 17. I will be on a panel that runs from 2:15 to 3:30 PM. The event is free and open to the public.

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Judging by last week’s six-hour CNN presidential candidate town hall on climate change, the rough Democratic consensus is that we’ve got 12 years until DOOM—and that we should probably ban the greenhouse-gas-reducing energy technologies of nuclear power and hydraulically fractured natural gas. Nonsense on stilts, argue Nick Gillespie, Katherine Mangu-Ward, Peter Suderman, and Matt Welch on the latest Editors’ Roundtable edition of the Reason Podcast.

The gang previews this week’s Democratic presidential debate, notes the tension between an increasingly crowded Republican race and the GOP’s decision to call off state primaries, analyzes President Donald Trump’s move to call off withdrawal talks with the Taliban, and gives the moderator an earful about his WrongThink on West Side Story.

Audio production by Ian Keyser.

Music Credit: ‘Song of Mirrors’ by Unicorn Heads

Relevant links from the show:

“Four Memorable Moments from CNN’s Climate Town Hall,” by Nick Gillespie

“Dems to Talk for 6 (!) Hours About Climate Change on CNN Tonight,” by Elizabeth Nolan Brown

“Despite What Democrats Said at Their Debate, We’re Not Heading Toward Climate Apocalypse,” by Ronald Bailey

“Democrats Debate To Determine Who Will Spend Us Into Oblivion,” by Steven Greenhut

“Warren Wants ‘Big, Structural Change’ That Goes Beyond Anything Previous Democratic Administrations Have Proposed,” by Ira Stoll

“Kamala Harris Is a Cop Who Wants To Be President,” by Elizabeth Nolan Brown

“Biden’s Age Matters, Even if Democrats Want To Ignore It,” by Ira Stoll

“Former S.C. Congressman Mark Sanford Launches Longshot Primary Bid One Day After GOP Cancels S.C. Primary,” by Eric Boehm

“The GOP Deals With Trump Competition by Canceling Elections,” by Matt Welch

“Joe Walsh Isn’t Running on the Issues,” by Billy Binion

“Mark Sanford Gives Himself Two Weeks to Decide if He Wants to Be Trump Roadkill,” by Matt Welch

“Bill Weld Raises a Pathetic $688,000 in Second Quarter,” by Matt Welch

“Trump Caves to Lindsey Graham; U.S. Troops To Stay the Neverending Course in Afghanistan,” by Elizabeth Nolan Brown

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Food delivery app services like Grubhub and Uber Eats might have to get liquor licenses if they want to keep doing business in New York state.

A proposal from the New York State Liquor Authority (SLA) would require third-party vendors who charge commissions on a liquor-license-holding restaurant’s sales to be added as a principal on that liquor license, if those commissions work out be greater than 10 percent of the restaurant’s profits.

The proposed rule would reverse a ruling issued by the SLA in 2017. That decision declared that delivery apps could remain off businesses’ liquor licenses so long as their fees were less than 10 percent of the profits restaurants were making on beer sales.

The change puts food delivery app businesses, who typically charge restaurants a percentage of each order delivered, in a bit of a bind.

Businesses that are included on liquor licenses “would essentially be subject to any violations of the [alcohol beverage control] law in New York whether or not they are the guilty party so to speak,” says John Olsen of the Internet Association, a trade group that represents several food delivery app businesses.

And trying to avoid those added liabilities—either by keeping their commissions below 10 percent of a business’s profits or by switching to a flat fee—would require restaurants to share a lot more information with delivery apps, something that would probably prove logistically challenging. These same models might prove uneconomical for restaurants in regions of the state where order volumes are lower, says Olsen.

On the other side of the issue are New York City restaurants that rely on delivery apps to reach more customers but resent the high commissions they have to pay to participate on these platforms.

“This would be a major and positive change for our industry, as we currently suffer from unfair demands from companies like Grubhub-Seamless to hand over to exorbitant percentages of our sales,” said the New York City Hospitality Alliance, which represents bars and restaurants in the city, in a press release about the SLA’s proposal.

Andrew Rigie, the group’s executive director, tells Reason the rule change could curb “excessive fees some companies are extracting from restaurants as a percentage of their sales.”

The New York City government has also been looking hard at the fees charged by food delivery apps. At a June oversight hearing, the city council’s Small Business Committee grilled representatives of Grubhub and Uber Eats over their billing practices.

City Councilmember Mark Gjonaj, who chairs the small business committee, floated the idea of a restaurant association negotiating collectively with app companies as a way of lowering the fees they could charge.

Restaurants that don’t like Grubhub or Uber Eats’ business practices or who find the fees they charge excessive could, of course, simply decide to not partner with these companies. That they still continue to do so shows that they derive some benefit from being able to reach customers through these apps. But they’re happy to enlist the government in a dispute with vendors whose services they value.

The SLA’s proposal was first posted in August. It will still have to be approved by the full SLA board, which will solicit feedback on the rules at its October meeting.

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Sixteen years ago, Western Illinois University (WIU) eliminated its “free speech zone” and announced that it would recognize students’ First Amendment rights on all areas of campus.

But the university has not lived up to this promise. Earlier this year, a campus police officer scolded a student for engaging in political speech “outside the free speech zone.”

The student, Dylan Crowl, was recruiting members of Young Americans for Liberty. He had a sign that read “Free ‘Pot’ Brownies” and invited students to take a brownie from a pot. It was a pun; the brownies did not actually contain marijuana.

According to the Foundation for Individual Rights in Education:

Within minutes, the students were stopped by two members of the WIU Police, who told Crowl that the officers were “going to give [him] an education” on the repercussions of bringing marijuana to campus. At least one of the officers noted his personal disagreement with the policy positions advocated by the students and asked them to remove the word “pot” from the sign. Crowl refused.

The officers further explained that they “came out here because people thought you were handing out actual THC brownies and, anyways, you’re outside of the free speech zone right behind the Union.”

For that reason, literal speech police shut down the event.

WIU did not immediately respond to a request for comment.

The students were well within their rights to try to recruit members of their group and to give away harmless brownies. The university should reconfirm this, and make sure its enforcers understand that after nearly two decades, the free speech zone is still dead.

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The Trump administration is reportedly considering a pitch from former NBC Chairman Robert Wright, a presidential pal, for a research program aimed at preventing mass shootings by electronically monitoring people who have received psychiatric diagnoses. That Orwellian plan may or may not be defeated by its utter impracticability.

Wright has dubbed his idea SAFEHOME—an acronym for Stopping Aberrant Fatal Events by Helping Overcome Mental Extremes. The Washington Post reports that his three-page proposal imagines using “technology like phones and smart watches” to “detect when mentally ill people are about to turn violent.” The idea, the paper says, is to look for “small changes that might foretell violence.”

The Post notes that “only a quarter or less” of mass shooters “have diagnosed mental illness.” But that is only the beginning of the difficulties with this half-baked scheme.

The larger problem is that the percentage of “mentally ill people” (a group that, by some estimates, includes more than a quarter of the U.S. population in any given year) who will use a gun to commit mass murder is approximately zero. Likewise for the general population, since mass shootings are very rare events, accounting for less than 1 percent of gun homicides.

A 2012 study that the Defense Department commissioned after the 2009 mass shooting at Fort Hood in Texas explains the significance of that fact in an appendix titled “Prediction: Why It Won’t Work.” The appendix observes that “low-base-rate events with high consequence pose a management challenge.” In the case of “targeted violence,” for example, “there may be pre-existing behavior markers that are specifiable.” But “while such markers may be sensitive, they are of low specificity and thus carry the baggage of an unavoidable false alarm rate, which limits feasibility of prediction-intervention strategies.” In other words, even if certain “red flags” are common among mass shooters, almost none of the people who display those signs are bent on murderous violence.

The Defense Department report illustrates the problem with a hypothetical example. “Suppose we actually had a behavioral or biological screening test to identify those who are capable of targeted violent behavior with moderately high accuracy,” the report says. If “a population of 10,000 military personnel…includes ten individuals with extreme violent tendencies, capable of executing an event such as that which occurred at Ft. Hood,” a test that correctly identified eight of those 10 dangerous people would wrongly implicate “1,598 personnel who do not have these violent tendencies.”

That scenario assumes a predictive test that does not actually exist. “We cannot overemphasize that there is no scientific basis for a screening instrument to test for future targeted violent behavior that is anywhere close to being as accurate as the hypothetical example above,” the report says.

The research program imagined by Wright is aimed at developing a predictive test. But even in the unlikely event that it succeeded, the enormous false-positive problem would remain.

“According to a copy of the SAFEHOME proposal,” the Post says, “all subjects involved [in the research] would be volunteers,” and “great care would be taken to ‘protect each individual’s privacy,'” while “‘profiling of any kind must be avoided.'” It is hard to see how profiling can be avoided, since the whole premise of the project is that people who fit a certain psychiatric profile are especially prone to mass murder.

Once the research has been completed, of course, the resulting information would be pretty useless if it could be deployed only against volunteers. So how would that work? Would people with certain psychiatric diagnoses be legally required to carry electronic monitors aimed at detecting “small changes that might foretell violence”? How could such a requirement be reconciled with due process or the Fourth Amendment?

Maybe the requirement would be limited to people who pose an especially high risk of violence. But how would they be identified? Since mental health specialists are notoriously bad at predicting violence, SAFEHOME would have to develop two kinds of tests: one that identifies people who are prone to violence and one that predicts when those people are about to commit a crime. “I would love if some new technology suddenly came along that would help us identify violent risk,” Marisa Randazzo, former chief research psychologist for the U.S. Secret Service, told the Post, “but there’s so many things about this idea of predicting violence that [don’t] make sense.”

The Post also interviewed Johns Hopkins neurologist Geoffrey Ling, who advised Wright on his proposal. “To those who say this is a half-baked idea, I would say, ‘What’s your idea? What are you doing about this?'” Ling said. “The [worst] you can do is fail, and failing is where we are already.” Given the potential for mass stigma, invasions of privacy, and violations of due process, I’d say we can do a lot worse than failing.

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