Schools roundup

  • Progressive law school opinion has never made its peace with Milliken v. Bradley, which is another reason not to be surprised that the coming campaign cycle might relitigate the whole school busing issue [Em Steck and Andrew Kaczynski, CNN on 1975 Elizabeth Warren article]
  • Irony? School “anti-bullying specialist” seems to have bullied students over officially disapproved expression [Robby Soave, Reason; Lacey Township, N.J. students suspended over off-campus Snapchat]
  • How Abbott and other New Jersey school finance rulings wound up plunging the state deep in debt [Steven Malanga, City Journal; earlier here and at Cato on New Jersey and more generally on school finance litigation including here, here (Kansas, etc.) and at Cato (Colorado)]
  • “Pennsylvania School District Warns Parents They Could Lose Kids Over Unpaid School Lunches” [AP/CBS Philadelphia]
  • “Educational Freedom, Teacher Sickouts, and Bloated Higher Ed” [Cato Daily Podcast with Corey DeAngelis, Neal McCluskey, and Caleb Brown]
  • No shock, Sherlock: New York law suspending statute of limitations for suing schools results in higher insurance premiums for public districts [New York Post]

Pennsylvania special: muzzle a critic for about $300

“Pennsylvania offers the flimsiest of SLAPP protections, something [Joe] Schiavo discovered firsthand when he served as vice chair of the Old City Civic Association’s zoning committee.” The civic association often took a role in development controversies, and after facing repeated (though unsuccessful) lawsuits from developers and owners, was dropped by its insurance carrier and decided to disband. “‘For the cost of a filing fee, probably less than $300, they actually shut down the civic association,’ Schiavo said of the organization’s litigious opponents. (The fee for a non-jury trial complaint in Common Pleas Court is $333.)” Among others who’ve used Pennsylvania law to go after critics: prominent politicians. [David Gambacorta, Allentown Morning Call/Tribune News Service]

Omit a letter, spoil a website

Richard Gray of St. Louis writes:

“Are you aware that if you accidentally leave out the ‘y’, as I just did, www.overlawered.com takes one to a gaudy Asian website, reminiscent of a Japanese pachinko parlor?

“Apropos of nothing, but wondered if you had ever experienced that.”

Never experienced it until just now. Readers who understand Japanese Chinese, or relevant issues of web promotion, are welcome to chime in.

Liability roundup

Now you’re (not) cooking with gas

A New York utility says the politically arranged blockage of a pipeline project may mean an end to new gas hookups for residential and commercial customers [Bernadette Hogan and Ben Feuerherd, New York Post]

A demand for “no new fossil fuel infrastructure” seems to be rapidly emerging from the green wing of world politics (Seattle, IEA, Vermont, Maryland, New York, earlier), making clear that its objection is not to a particular pipeline or fracking project or oilfield development or export terminal but to any and all of them, period.

I wonder whether the demand, if taken seriously, would also entail disallowing new gasoline stations.

More/related: strangling the New York power grid [Robert Bryce, Crain’s New York Business]

Restraining regulation by guidance document

My new post at Cato finds some real progress in grappling with a longstanding problem of the administrative state:

Since my update post last year, there have been a number of new developments. Soon after then-Attorney General Jeff Sessions’s announcement of the new policy, followed by the revocation of dozens of existing guidance documents, then-Associate Attorney General Rachel Brand issued a January 2018 directive telling Department of Justice attorneys not to rely on allegations of noncompliance with agency guidance, in and of themselves, as reason to initiate civil enforcement actions. And this past winter, DOJ updated its Justice Manual to limit the use of guidance as a basis for direct liability in both civil and criminal enforcement. “Guidance is not law. It’s not binding. And it shouldn’t be given the force or effect of law,” said Deputy Assistant Attorney General Charles Cox in a January speech.

Plus OMB guidance on the Congressional Review Act (it applies to some guidance documents) and a new study by Prof. Nicholas Parrillo for the Administrative Conference, which found that

regulated parties are most likely to feel that they have no real choice but to obey guidance 1) when they need to obtain preapproval before doing business, 2) when repeat interactions with regulators are inevitable and full compliance all the time is unlikely no matter how hard they try; 3) when the consequences of agency enforcement, or even the opening of an enforcement action, are severe; and 4) when the regulated party employs a large dedicated compliance staff.

These might serve as interesting guideposts in looking for ways to revamp regulatory schemes in such a way that agencies’ whims will no longer be received as law.

Supreme Court roundup

  • Cato batted 12-4 in Supreme Court term that saw Kavanaugh agreeing nearly as often with Kagan as with Gorsuch [Ilya Shapiro; another roundup of the recently concluded term from Jonathan Adler]
  • Not only is Alan Dershowitz wrong about Supreme Court review of impeachment, he’s wrong in a way that practically invites constitutional crisis [Keith Whittington]
  • High court declines certiorari in challenge to Wisconsin butter grading law [Ilya Shapiro and Matt Larosiere, Mark Arnold, Husch Blackwell with update, earlier here and here]
  • “The John Marshall Legacy: A Conversation with Richard Brookhiser” [Law and Liberty audio on new biography; Federalist Society panel with Brookhiser, Hon. Kyle Duncan, Hon. Kevin Newsom, and David Rifkin, moderated by Hon. William Pryor]
  • I’m quoted on Gundy v. U.S., the improper-delegation case: “While the Court majority did not agree this time, the line-up suggests breakthrough imminent” [Nicole Russell, Washington Examiner] From some quarters on the Left, rage at the Supreme Court that got away [Ilya Shapiro at P.J. O’Rourke online magazine American Consequences]
  • “Supreme Court Returns Constitutional Patent Case to Sender” [Gregory Dolin, Cato] on Return Mail v. U.S. Postal Service, earlier on dangers when federal agencies litigate before federal agency tribunals]

Making eagle feathers legally safe for Native American worshipers

Eagle feathers have long been important in Native American religious practice, but federal law generally bans possession of eagle feathers under stringent penalties. While the law authorizes the Interior Department to exempt Native American religious use, the Department has sometimes been stinting and ungenerous in its granting of permission. Although the Fifth Circuit ruled in favor of Indian worshipers in a big 2014 case under the Religious Freedom Restoration Act of 1993, uncertainty continues to linger. Now advocates have petitioned for a rulemaking that would expand the exemption from federally recognized tribes only to all sincere believers including members of state-recognized tribes, and would set the exemption on a firmer legal footing for the future by taking it through the notice and comment process. [Joseph Davis, Federalist Society, earlier; End the Feather Ban advocacy page]

Police union roundup

  • New research finds Florida extension of collective bargaining rights to sheriff’s deputies correlated with increase in violent incidents when compared with municipal forces, for which law did not change [Dhammika Dharmapala, Richard H. McAdams, and John Rappaport, Cato Research Briefs in Economic Policy #171]
  • “This Cop Is Getting $2,500 a Month Because Killing an Unarmed Man in a Hotel Hallway Gave Him PTSD” [Scott Shackford; Mesa, Arizona] “A Portland police sergeant was fired last year for suggesting to his fellow officers that they should shoot black people for no reason. More than a year later, he’s in line to receive a $100,000 settlement from the city.” [Joe Setyon]
  • “Philadelphia District Attorney Larry Krasner drew up a list of cops he wouldn’t put on the stand because of their history of misconduct, and the local Fraternal Order of Police union sued.” [Scott Greenfield]
  • California police groups fight to stop new law making misconduct records public [Scott Shackford, and more, and yet more]
  • “Police Officer Claims He Feared For His Life After Shooting Family’s Roomba To Death” [humor/satire, Babylon Bee]
  • Camden, N.J.’s start-over-from-scratch approach to police employment seems to be producing some favorable results [Alex Tabarrok with charts from Daniel Bier]