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Walter Olson

Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. Prior to joining Cato, Olson was a senior fellow at the Manhattan Institute. He has been a columnist for Great Britain’s Times Online as well as Reason. His writing appears regularly in such publications as the Wall Street Journal, New York Times, and New York Post. He has appeared numerous times before Congress and advised many public officials. The Washington Post has dubbed him the “intellectual guru of tort reform.” His approximately 400 broadcast appearances include all the major networks, CNN, Fox News, PBS, NPR, and Oprah.

Articles by Walter Olson

H.R. 1: Cracks Appear In The Coalition

April 2, 2021

H.R. 1: Cracks Appear In The Coalition | Cato at Liberty Blog

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Trump Cannot Stay In Power By Declaring Martial Law

December 29, 2020

“There is no role for the U.S. military in determining the outcome of an American election,” Army Secretary Ryan McCarthy and Chief of Staff Gen. James McConville said in a joint statement earlier this month after Michael Flynn, President Donald Trump’s first national security advisor, declared in an interview with Newsmax that Trump could “take military capabilities, and he could place them in those [swing states], and basically re‐​run an election” in those states. Other Trump backers have suggested that he might use a declaration of martial law combined with the powers of the Insurrection Act to overturn Joe Biden’s victory in the November election.
What would happen if a president actually tried these things? The answer, at least in the America we live in today, is that he would fail.

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Minneapolis Won’t Let Riot‐​Battered Stores Install Security Shutters

September 15, 2020

In the destructive riots that hit Minneapolis this summer — riots I’ve argued libertarians should be in the forefront of condemning — nearly 1,500 businesses were heavily damaged or destroyed.
For many of these businesses, the Minneapolis city government adds a special insult: it won’t let shop owners install exterior shutters to protect against break‐​ins, a common practice in other cities. The Star‐​Tribune reported on the resulting frustration:
In a report justifying the rule change, Minneapolis officials argued that external shutters “cause visual blight” and create the impression that an area is “unsafe” and “troublesome.”
After looters crashed through his floor‐​to‐​ceiling windows and stole $1 million worth of booze in May, Chicago‐​Lake Liquors owner John Wolf wanted to protect

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Citing Public Health Authority, Feds Decree Nationwide Eviction Moratorium

September 2, 2020

Yesterday the Trump administration published an emergency edict purporting to ban a wide range of residential evictions for nonpayment of rent nationwide through the end of the year (and well past Election Day). [AP, Reuters] Under what claimed authority, you may ask, and if so, how constitutional is that claimed authority?
It’s one thing for the feds to attach strings regarding evictions to housing they’re involved with financially. That has already been part of the federal response to the COVID-19 pandemic. This new measure, far broader, dispenses with that nexus.
State governments have also imposed eviction moratoria related to the pandemic, often employing levers at their disposal that the federal government does not have, such as some discretion over the operation of their courts

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Constitutionally, Religious Gatherings Must Enjoy the Same Rights As Protest Gatherings

June 8, 2020

Ten days can be a long time in constitutional law. On May 29 a closely divided U.S. Supreme Court, with Chief Justice John Roberts joining the four more liberal Justices, refused to order California to lift its restrictions, meant to curb transmission of the novel coronavirus, on church services that have more than 100 attendees or fill more than 25 percent of building capacity. I wrote about that ruling last Tuesday, noting that the question for both Roberts and dissenting Justice Brett Kavanaugh was whether California had discriminated against worship services with respect to comparable secular gatherings. Roberts declined to find such discrimination, observing that California’s rules had cracked down across the board on activities in which “large groups of people gather in close

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A Quarter Century of Cato Research on Police Accountability

June 1, 2020

You’ve probably seen some of Cato’s recent work on police misconduct and accountability, notably writings on the Supreme Court’s qualified immunity doctrine by Clark Neily and Jay Schweikert (more) and Aaron Yelowitz’s post on the high cost of police‐​community mistrust. If you’re new here, though, you may not realize that Cato has for decades made itself a center for principled, empirically oriented research on police misconduct and how best to bring accountability to the public use of force.
A sampling of work Cato has sponsored, published, or supported:
* Radley Balko’s 2013 book The Rise of the Warrior Cop: The Militarization of America’s Police Forces has become the standard work on its subject. Since then we’ve stayed on the topic of police militarization: check out Trevor Burrus‘s

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Labor Law: Feds Call Off Their War on Franchising and Subcontracting

January 13, 2020

The U.S. Department of Labor has announced a final rule (press release, fact sheet, FAQ) backing off one of the Obama administration’s most damaging initiatives, its attempt to redefine a wide range of franchise, subcontract, and supplier business models as “joint employment.” The effect of that move would have been to make many companies liable for breaches of labor and employment law committed by their franchisees or contractors. The final rule is set to take effect on March 16, 2020.
This is an important win for economic freedom, as well as for the legal reality that a supply or contractual relationship between two firms is by no means the same thing as a merger between them.
It is also a victory for regulatory modesty. The Obama rules had pushed hard at (and arguably overstepped) the

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Unions Can Dispense Legal Advice. Why Can’t Trade Associations?

January 7, 2020

May a state prohibit a trade association from employing lawyers to dispense legal advice to member firms? Last spring the Fourth Circuit ruled that it does not violate the First Amendment for the state of North Carolina to maintain such a ban, and on December 16 the Supreme Court let that result stand by declining a certiorari petition. But the issues in the case are worth our attention.
It is still taught that corporations cannot practice law, but the exceptions to that maxim are big ones. Long ago the rules changed to permit corporations to hire in-house lawyers and insurance companies to employ staff lawyers to represent policyholders. Meanwhile, lawyers themselves have won the right to the advantages of incorporation, which amounts to saying a corporation can practice law so long as

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Disputed Appointments and the Supreme Court’s Legitimacy, in 1937 and Today

December 30, 2019

Here is news you probably can’t use: a new Texas Law Review analysis by University of Chicago law professor William Baude concludes that Justice Hugo Black, who served on the Supreme Court from 1937 to 1971, was unconstitutionally appointed.
The relevant text is the Constitution’s Article I, Section 6, which says “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time.”
At the time of his appointment Black was serving as a senator from Alabama as part of a Congress that had enacted new retirement benefits for Justices, and while his backers argued that the clause did not apply to bar his

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Judge Rules Against New York in Exxon Securities Fraud Case

December 10, 2019

New York’s attorney general has sustained an embarrassing defeat in the state’s securities-fraud case against Exxon Mobil over its communications on climate change, a case that never should have been brought.
The case got off on the wrong foot from the start when since-disgraced NY AG Eric Schneiderman signaled that he wanted to use it as a vehicle against wrongful advocacy of bad public policy positions. I and others strongly criticized his moves to use subpoenas for that purpose, and editors at places like USA Today and the Washington Post were troubled by the likely chilling effects such tactics would have on advocacy, and the First Amendment implications of that.
At the last minute Schneiderman’s successor as New York attorney general, Letitia James, dropped two counts that would have

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Nevada’s T-Mobile Deal and the State of Antitrust Law

December 9, 2019

T-Mobile and Sprint, the #3 and #4 wireless carriers, would like to combine so as to more effectively compete with Verizon and AT&T, the two dominant players in the cellular service market. Various states went to court against the merger, arguing (dubiously) that the combination would harm consumers and drive up prices. And now, via Reuters, this:
Also on Monday, Nevada said it would withdraw from the lawsuit in exchange for early deployment of the next generation of wireless in the state, creation of 450 jobs for six years and a $30 million donation to be distributed by Nevada Attorney General Aaron Ford and aimed at helping women and minorities, Ford’s office said.

How blatant can you get? The best touch, of course, is the $30 million fund with which to ingratiate lucky beneficiaries

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Ohio: A Law Against Media Concentration Backfires

December 2, 2019

This is just absurd: to comply with federal regulations barring owners of daily newspapers from also owning local broadcast stations, the owner of the venerable Dayton Daily News in Ohio may knock it down to three-times-a-week publication so that it won’t count as a daily anymore. Keith J. Kelly of the New York Post spotted the story, Cox Media Group outlined the plan in a press release a few weeks ago, and Joshua Benton at Nieman Lab has more:
To increase the quality of local journalism in Ohio, the Federal Communications Commission is requiring three newspapers to stop printing daily….
Did you get that? To strengthen the local news ecosystem in Dayton, the government is making its biggest newspaper publish less.

The rules date back to 1975 when the Federal Communications Commission

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Dolly’s Doing Just Fine Without Politics

November 22, 2019

A profile in the New York Times finds it "odd" that almost everyone loves country entertainment legend Dolly Parton even though she "has remained reluctant to make the slightest hint of a political statement." I think that should win some sort of prize for statements that are best at missing what is in plain sight.
Do most people really want politics to play that big a part in their lives or their choice of entertainment? I don’t know, but here are some of the reactions I’ve seen this morning on social media:
"She’s been an entertainer and a generous person. Why not leave it at that?"
"The general idea seems to be ‘if something doesn’t have a political statement in it, it’s not good enough’."
"’I don’t understand. ‘Be a good person’ is a perfectly legitimate political statement. And Miss

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Supreme Court Won’t Intervene In Connecticut Gunmaker Case, For Now

November 14, 2019

Without comment or dissent, the Supreme Court on Tuesday turned down a certiorari petition asking it to review a suit against gunmaker Remington over the Sandy Hook massacre, thus allowing the suit to proceed for now. The current suit, as green-lighted by the Connecticut Supreme Court earlier this year over a dissent from three of its seven justices, claims that Remington violated the broad provisions on deceptive marketing of a state unfair-trade-practices law, the Connecticut Unfair Trade Practices Act (CUTPA). It should be emphasized that the case is still at an early stage and that the Justices will probably be presented with further opportunities to pronounce on its compatibility with the federal law that pre-empts most gun suits, the Protection of Lawful Commerce in Arms Act (PLCAA).

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HHS Moves To Lift LGBT-Bias Funding Strings

November 4, 2019

On Friday, the Department of Health and Human Services proposed to rescind some regulations issued in the final days of the Obama administration that required recipients of HHS program funds to observe nondiscrimination on the basis of sexual orientation and gender identity.
The move, which now enters a public comment period, is being covered in the press as an issue of religious accommodation: should church-affiliated agencies be allowed to participate in federally funded adoption and foster care placements even if they decline to serve same-sex couples as clients? And that is indeed one of the hotly contested issues.
But it is worth a moment to examine how the latest HHS initiative might also be grounded in two other values, the rule of law and pluralism, including that

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Trick-Or-Treat. It’s Senator Warren!

October 31, 2019

Washington Post reporter Annie Linskey shares this anecdote from the campaign trail about Sen. Elizabeth Warren (D-Mass.) and the wealth tax she has proposed:
Sen. Elizabeth Warren says that she met two little girls in N.H. who are planning a "two cents" Halloween costume in homage to her proposed wealth tax.
It will definitely be a scary costume to some.
— Annie Linskey (@AnnieLinskey) October 30, 2019

Isn’t it cute? Kids and their wacky ideas! But the better analogy would be if they showed up demanding 2% of the value of the house and its furnishings, and added that they would be back with that same demand each year.
Warren’s fans might respond that her confiscatory plans begin — for now, at least — only after the first $50 million in assets, far above the value of almost anyone’s

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No, America Does Not “Need a Hate Speech Law”

October 31, 2019

When Establishment figures declare that they’ve changed their mind on free speech and now think there should be less of it, know that the speech they expect will get throttled is yours, not theirs.
This new Washington Post opinion piece ("Why America needs a hate speech law") is by Richard Stengel, a former editor of Time magazine and the State Department’s undersecretary for public diplomacy and public affairs from 2013 to 2016. In that post, he was charged with representing America’s values to the world.
Honestly, could Stengel’s argument be any weaker? "Even the most sophisticated Arab diplomats that I dealt with did not understand why the First Amendment allows someone to burn a Koran. … it should not protect hateful speech that can cause violence by one group against another."
If

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Section 8 Landlording Shouldn’t Be Mandatory

October 29, 2019

Last year I wrote:
In principle, the federal housing-voucher program known as Section 8 ought to win points as a market-oriented alternative to the old command-and-control approach of planning and constructing public housing projects. While allowing recipients wider choice about where to live, it has also enabled private landlords to decide whether to participate and, if so, what mix of voucher-holding and conventionally paying tenants makes the most sense for a location….
For landlords, participation in the program has long carried with it some significant burdens of inspection, certification, and reporting paperwork. So long as participation was voluntary, these conditions were presumably worth it in exchange for the chance to reach voucher-holders as a class of potential tenants. When

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New York: Cold Showers, Black Eyes, and Public Employee Tenure

October 18, 2019

New York State has agreed to pay $6 million to settle claims that disabled residents of a Bronx group home for developmentally disabled adults were physically abused and neglected by staff, and the state has also spent a further $5.7 million thus far defending the staff members in court, as Benjamin Weiser reports in the New York Times. Among the allegations were that staff members hit and kicked residents, gave them cold showers, and "left some with black eyes and other bruises." However, don’t assume that any public employees lost their jobs:
A state investigation later substantiated allegations of misconduct by 13 workers.
But the state failed to fire any of the employees, The New York Times reported in June.
A state arbitration process shielded the workers who had been cited for abuse

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O’Rourke: Churches That Don’t Support Rights Should Lose Exemption

October 11, 2019

Last night, at a CNN candidate forum on gay rights, CNN’s Don Lemon asked Democratic candidate Beto O’Rourke: "religious institutions like colleges, churches, charities. Should they lose their tax-exempt status if they oppose same-sex marriage?"
O’Rourke answered "Yes," going on to say "There can be no reward, no benefit, no tax break for anyone … that denies the full human rights and the full civil rights of every single one of us."
Aside from being grossly illiberal, anti-pluralist, and inflammatory, O’Rourke’s announced policy is also unconstitutional under current Supreme Court precedent.
As a long line of court opinions has made clear, to quote Eugene Volokh, "tax exemptions can’t be denied based on the viewpoint that a group communicates," and the law “may treat groups differently

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O’Rourke: Churches That Don’t Support Rights Should Lose Exemption

October 11, 2019

Last night, at a CNN candidate forum on gay rights, CNN’s Don Lemon asked Democratic candidate Beto O’Rourke: "religious institutions like colleges, churches, charities. Should they lose their tax-exempt status if they oppose same-sex marriage?"
O’Rourke answered "Yes," going on to say "There can be no reward, no benefit, no tax break for anyone … that denies the full human rights and the full civil rights of every single one of us."
Aside from being grossly illiberal, anti-pluralist, and inflammatory, O’Rourke’s announced policy is also unconstitutional under current Supreme Court precedent.
As a long line of court opinions has made clear, to quote Eugene Volokh, "tax exemptions can’t be denied based on the viewpoint that a group communicates," and the law “may treat groups differently

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Today’s Tax Code Protects Some Offensive Ideas. That’s Good.

September 26, 2019

Liberty-minded UCLA lawprof Eugene Volokh, a First Amendment specialist, last week thanked a House panel for “inviting me to testify about ‘How the Tax Code Subsidizes Hate.’ The Tax Code indeed subsidizes hate, just as it subsidizes Socialism, Satanism, and a wide variety of dangerous and offensive ideas.”
In particular, he explained, a long line of court opinions has made clear that 1) “tax exemptions can’t be denied based on the viewpoint that a group communicates,” 2) “excluding speech that manifests or promotes ‘hate’ is forbidden viewpoint discrimination”, 3) the law “may treat groups differently based on their actions, but not based on the views they express” (emphasis added) and that 4) while groups may be denied tax exemptions “for deliberately engaging in speech that falls within

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How About Retroceding Washington, D.C. to Maryland?

September 20, 2019

Yesterday the House Committee on Oversight and Reform held a hearing on proposals to make the District of Columbia a state, and as he has done before, Roger Pilon, founder of Cato’s Robert A. Levy Center for Constitutional Studies, testified against the idea.
Speaking for myself, what would make more sense than D.C. statehood? Retroceding the city of Washington, or at least its residential portions, to the state of Maryland. One plan, promoted by activist David Krucoff, would turn it into Douglass County, Maryland, named after the great Frederick Douglass and conveniently retaining the initials D.C.
Maryland retrocession was long dismissed as politically impractical, perhaps because of reluctance in the Old Line State to accept the deal, but those calculations might reasonably begin to

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New York Bill Would Enable Visitation Demands On Adoptive Families

September 18, 2019

Thank you to Naomi Riley for including me in her Wall Street Journal piece earlier this month on a New York scheme to empower birthparents whose parental rights have been terminated to petition nonetheless for court-ordered visitation. The quotes from me:
In many cases adoptive parents do arrange with birthparents for some kind of contact after an adoption is completed. “Some adoptive parents are glad to agree to those conditions, and that’s fine for them. Where they have not, it is a very bad idea to adopt a presumption of enforcing such a long-term obligation on unwilling adopters,” notes Walter Olson, an adoptive parent and a senior fellow at the Cato Institute.
The legislation presents serious logistical concerns as well. What if an adoptive family wants to move across the country?

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Man Engages In Sarcasm On Social Media. Career Survives.

September 5, 2019

Leif Olson (who is no relation) is a well-known Texas lawyer who just landed a nice job at the U.S. Department of Labor. He’s a good friend of several people at Cato, and a Facebook friend of mine, although we’ve met in person at most briefly. We agree on many legal issues and likely disagree on some others.

This week, in one of the most unfair hatchet jobs I’ve seen over the years as a watcher of Washington journalism, a Bloomberg Law reporter took a heavily sarcastic Facebook post Leif Olson wrote three years ago and presented it as meant in all sincerity — complete with a partial screenshot which clipped off the comments that followed hailing the post as an elaborate exercise in sarcasm, which it obviously was.

As if that weren’t bad enough, the piece was compounded with other errors

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Man Engages In Sarcasm On Social Media. Career Survives.

September 5, 2019

Leif Olson (who is no relation) is a well-known Texas lawyer who just landed a nice job at the U.S. Department of Labor. He’s a good friend of several people at Cato, and a Facebook friend of mine, although we’ve met in person at most briefly. We agree on many legal issues and likely disagree on some others.
This week, in one of the most unfair hatchet jobs I’ve seen over the years as a watcher of Washington journalism, a Bloomberg Law reporter took a heavily sarcastic Facebook post Leif Olson wrote three years ago and presented it as meant in all sincerity – complete with a partial screenshot which clipped off the comments that followed hailing the post as an elaborate exercise in sarcasm, which it obviously was.
As if that weren’t bad enough, the piece was compounded with other

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How Not to Win an Argument About First Amendment Law

August 26, 2019

“If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment,” argues Los Angeles litigator Ken White in an Atlantic essay. “Those tired tropes are barriers to serious discussions about free speech.” Among verbal gestures that help very little or not at all when you’re trying to establish whether particular speech is protected under current First Amendment law:
* “Not all speech is protected; there are exceptions to the First Amendment.” [true but usually not helpful]
* “This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.” [see above; also, an empty rhetorical device deployed in a case that’s no longer good law] 
*

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The Times I Met David Koch

August 23, 2019

People ask if I crossed paths with philanthropist David Koch, whose death is being mourned today, and the answer is yes.
When I resolved to sample New York City’s high culture in my thirties on a modest salary, I went to performances of the popular-priced City Opera in its Lincoln Center home, the David Koch Theater. It gave me joy.
Years later, when I went to Johns Hopkins Hospital in Baltimore to pursue cancer treatment, the first building I saw after I parked my car was the giant David Koch Cancer Research Pavilion. It gave me hope.
And everywhere I went in the liberty movement over forty years, where there was a good cause, David Koch seemed to be somewhere in the background giving support, whether it was economic liberty, peace between nations, free trade, freedom to marry, or

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Really, It’s True: Creditors, Predators Not Same Thing

August 22, 2019

Between the print version of Rebecca Traister’s August 5 New York magazine profile of Elizabeth Warren, and the version now online, there can be spotted an amusing correction. Print version:

Online version: 

Let’s hope editors in the nation’s leading financial center continue to keep in mind that lending money to someone doesn’t necessarily make you a predator.

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Corporate Happy Talk and The Duty of Shareholder Loyalty

August 20, 2019

Yesterday the Business Roundtable released a “Statement on the Purpose of a Corporation” signed by 180 CEOs of major companies. It proclaims “a fundamental commitment to all of our stakeholders,” including customers, employees, suppliers, communities, and, finally, shareholders. It is being widely interpreted as a victory for anti-business campaigners and “corporate social responsibility” advocates, and perhaps also as a repudiation of the shareholder-primacy norm memorably defended (though in no way originated) by free-market economist Milton Friedman.
In reality, as I told Kevin Dugan of the New York Post, the text of the statement in itself signifies little beyond happy talk:
“It would be one thing if they said we’re endorsing having the Delaware courts change this particular legal

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