- Prof. Sam Estreicher proposes safe-harbor rule to overcome disincentives to hiring of costly or risky job seekers [SSRN via Workplace Prof]
- “Muslim flight attendant for ExpressJet suspended, wouldn’t serve alcohol” [Detroit Free Press, earlier]
- Profile of lawyer Joel Liberson, who’s talked many cities into suing banks for big bucks under Fair Housing Act [WSJ]
- “Did the 7th Circuit finally kill McDonnell-Douglas?” [Jon Hyman on “burden-shifting” evidentiary framework in employment discrimination law]
- U.S. Commission on Civil Rights believes law should defer to religious conscience claims “only to the extent that they do not unduly burden” bans on discrimination [Stephanie Slade, Reason; report with nonpartisan sections written by Lenore Ostrowsky] Anti-discrimination laws as applied to private actors restrict liberty and sometimes force conscience [David Harsanyi, The Federalist] “Massachusetts: Churches may be covered by transgender discrimination bans, as to ‘secular events'” [Volokh]
- “Unfair ‘Fair Housing’: The new Obama administration policy to ‘deconcentrate’ poverty is a threat to communities” [Howard Husock, City Journal; Kurtz, NRO]
- Today at Cato, Josh Blackman discusses his new book Unraveled: Obamacare, Religious Liberty, and Executive Power with comments from Washington Post Supreme Court reporter Robert Barnes and Philip Klein of the Washington Examiner, Ilya Shapiro moderating [watch live 12 noon Eastern]
- Breed-specific laws fuel mass euthanasia: “Montreal Gearing Up To Sentence Huge Numbers Of Innocent Dogs To Death” [Huffington Post]
- Feds prepare to mandate mechanical speed governors capping road speed of tractor-trailers; truckers warn of crashes and traffic jams [AP/San Luis Obispo Tribune]
- “You have to go back to the Red Scare to find something similar,” said Rep. Eddie Bernice Johnson (D-Texas) of advocacy-group subpoenas by Hill committee in “Exxon Knew” probe. Or just five months to the CEI subpoena [Washington Post hearing coverage which oddly omits mention of CEI episode]
- “I’m not here to take away your guns.” Why Hillary Clinton’s assurances ring hollow [Jacob Sullum] Trump’s comments defending stop-and-frisk and no-fly no-buy further undercut his never-impressive claims as defender of gun liberty [AllahPundit, Leon Wolf, Ilya Somin]
- Why my Cato colleagues believe the Trans-Pacific Trade Partnership (TPP) is worth supporting as a trade liberalization measure despite some suboptimal aspects [Daniel J. Ikenson, Simon Lester, Scott Lincicome, Daniel R. Pearson, K. William Watson, Cato Trade]
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.
On my trip to San Francisco last week I was delighted finally to meet Kevin Underhill, longtime writer of one of the most consistently funny and well-written of legal blogs, Lowering the Bar. If there were any justice in the world I would link a post of Kevin’s every day or two, but for the moment I’ll just note this one from last month: For years now, China has “forbidden anyone to reincarnate without [its] express written permission.”
On Tuesday the Cato Institute held a daylong conference on religious liberty. It was interesting throughout, but especially for its afternoon session on public accommodations, featuring Roger Pilon of Cato, Louise Melling of the American Civil Liberties Union (ACLU), and
Mark Rienzi of the Becket Fund for Religious Liberty and Catholic University. Coverage: Ramona Tausz, The Federalist.
Also notable as a cogent summary of the state of play on the federal Religious Freedom Restoration Act and its state equivalents (RFRAs), the luncheon keynote speech by University of Virginia law professor Doug Laycock, of FOIA-controversy fame:
More videos from other sessions at the conference page.
A new Cato podcast with Jay Richards and Caleb Brown explores the relationship between economic and religious liberty. Related: Ilya Shapiro and Michael McConnell on the Supreme Court’s punt in the Little Sisters of the Poor case (Zubik v. Burwell) on ObamaCare religious accommodation. And Cato will be holding a day-long conference on religious liberty Jun. 14 with Doug Laycock, Roger Pilon, Hon. William Pryor, and many other formidable names. More information, and online registration, here.
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.
- How the courts came to extend First Amendment protection to art, music, movies, and other expression not originally classed as “press” or “speech” [new Mark Tushnet, Alan Chen, and Joseph Blocher book via Ronald Collins]
- Cato amicus: church enterprises should be eligible for recycling program on same terms as secular businesses [Ilya Shapiro and Jayme Weber]
- “A Political Attack On Free Speech And Privacy Thwarted — For Now” [George Leef, Forbes on AFP v. Harris, earlier] Bill filed by Rep. Peter Roskam would keep IRS from collecting names of donors to nonprofits [Center for Competitive Politics]
- Newly enacted Tennessee conscience exemption for psychological counselors and therapists avoids some of the dangers of compelled speech [Scott Shackford, Reason]
- Cook County Sheriff Thomas Dart, benchslapped by Judge Richard Posner after sending credit card companies letters urging them to cut off dealings with Backpage.com, now seeks Supreme Court certiorari review [Ronald Collins, earlier here, here, and here]
- One problem with that Mississippi law: it gives extra protection to some religious beliefs about sex and marriage but not others [Popehat; my guest appearance on Mike Slater show, San Diego’s KFMB]