New ABA rules barring lawyers from displaying bias in selecting partners, experts, and even participants in practice-related social activities based on “socio-economic status” — such as the difference between high- and low-prestige schools? — could bring many of the operations of BigLaw to a grinding halt [Volokh]
Eugene Volokh on troubling implications for speech of the American Bar Association’s new adoption of rules declaring it a professional responsibility violation for lawyers to express bias in various ways, including in the course of “law-related social activities.” More: ABA Journal, Ron Rotunda/WSJ, Stephen Bainbridge.
Libertarian legal scholar Richard Epstein discusses the conflict over religious exemptions to antidiscrimination laws at Hoover “Defining Ideas” and in a related podcast at Acton Institute. He suggests that it might be helpful to refocus the concept of “public accommodations” on businesses held to common carrier principles, typically because of elements of monopoly:
Historically, Title II [of the Civil Rights Act of 1964, with public accommodation provisions] had two potent justifications. The first is that it was a necessary corrective against massive abuses of state power under Jim Crow. Thankfully, that risk is gone today. The other justification was that the traditional common law view — still good today — that any common carrier or public utility, by virtue of holding a monopoly position, was duty-bound to take all customers on reasonable and nondiscriminatory terms. When ordinary people have nowhere else to go for power, water, or transportation, they are entitled to get these services at reasonable rates. The rule covered all cases of racial discrimination, but it was not limited to it.
The implicit drawback of this position was that there was no duty to serve anyone in a competitive industry, precisely because disappointed customers had a full range of alternatives to which they could turn. The common law rightly held that refusals to deal in competitive industries counted as basic liberties.
A third-grade teacher “says the Miami-Dade County School Board discriminated against her by not hiring her for a job. One requirement of the position? Teaching an hour of Spanish per day….Her complaint says the school could have given her the job and then just had someone else teach the foreign language component for one hour per day.” [Miami New Times, Miami Herald]
The Church of Anti-Discrimination, most confident of sects, will settle for nothing short of full establishment: under a California court settlement, ChristianMingle.com, which bills itself as the largest online Christian dating site, has agreed to establish search options for men seeking men and women seeking women. Two California men had sued under the state’s expansive Unruh Civil Rights Act. Owner Spark Networks, which admitted no wrongdoing, “agreed to pay each plaintiff $9,000 each and $450,000 in attorneys’ fees to the two men’s lawyers.” [Jacob Gershman and Sara Randazzo, WSJ Law Blog] At Patheos, David Smalley, who describes himself as a pro-gay atheist activist, says the episode is based on too broad a definition of public accommodation; declining to offer a particular service is not the same as offering it to the public but turning down some customers. “Since when can the government tell us what products or services we must offer to future customers? Every atheist, every liberal, and every business owner needs to fight for Christian Mingle’s rights to offer the products or services they choose, even if we disagree with their practices or philosophy behind it all.”
“The common thread among suspects in these mass shootings and terroristic incidents is not merely that they had mental health issues and an attraction to extremist political ideologies. In each case, the concerned people in those killers’ lives failed to speak up or their warnings were dismissed when they did.” And the structure of legal incentives created by wide-sweeping high-penalty discrimination and privacy laws (which cover categories like mental illness by way of the ADA) may not be entirely unrelated to that phenomenon. [Noah Rothman, Commentary] “No Psych Exam for Orlando Shooter Despite Odd Behavior, FBI Probes” [NBC News]
“‘Ban the box’ forbids public and often private employers from inquiring about an applicant’s criminal history until late in the hiring process. Such policies have been adopted in cities and states across the country.” But two new working papers now “suggest that, as economic theory predicts, ‘ban the box’ policies increase racial disparities in employment outcomes” and specifically harm young minority applicants with clean criminal records. “We should repeal ‘ban the box’ and focus on better alternatives.” [Jennifer Doleac, Brookings Institution/Real Clear Markets]
- Do behavioral economists acknowledge policymakers’ own foibles? Not often it seems [Niclas Berggren via Bryan Caplan]
- China, not unlike our own attorney general-environmentalist alliance, is cracking down on the work of what it deems ideologically harmful nonprofits [ABA Journal]
- Barking mad: new ABA ethics proposal would deem it professional misconduct for lawyers to discriminate on various grounds, including “socioeconomic status,” in choosing partners, employees and experts [Eugene Volokh, Sara Randazzo/WSJ Law Blog]
- Virginia still has a law requiring annual safety inspection of your car, and it’s still a bad idea [Alex Tabarrok]
- Court in Canadian province of New Brunswick rules against honoring will that left estate to racist group [CBC]
- From the left, Paul Bland sees Monday’s Supreme Court decision in Spokeo v. Robins as a big loss for business defendants [Public Justice, earlier] Contra: Andrew Pincus, plus more from WLF.
Last summer I was a panelist in New York City when the law firm of Fried Frank hosted its 15th annual Michael R. Diehl Civil Rights Forum, on the topic of “Balancing Liberties: The Tension between LGBT Civil Rights and Religious Exemptions.” It’s now been posted online. Other participants included Marci Hamilton (Cardozo Law School and private practice) and Rose Saxe (ACLU). Of the three, I was the panelist who defended the broadest legislative scope for exemptions based on conscience and religious scruple from laws of otherwise general applicability. Jesse Loffler moderated.