January 16 roundup

  • The two new heads of the judiciary committees in the Pennsylvania legislature are nonlawyers, and the legal community appears to be fine with that [Max Mitchell, Legal Intelligencer]
  • Long after his downfall in one of the worst U.S. legal scandals in years, Stan Chesley was still listed as holding an honored position at a major charity until a reporter started calling [Josh Nathan-Kazis, Forward, I’m quoted; update (Chesley’s name removed)]
  • National security restrictions form an important part of regulatory practice these days for international business, discussed at a Federalist Society National Lawyers Convention panel with William J. Haynes II, Timothy Keeler, Randal Milch, Donald Rosenberg, and moderator Eric J. Kadel, Jr.;
  • How seeking government intervention backfired on Silicon Valley [Drew Clark, Cato Policy Report]
  • Are Baltimore schools underfunded? tales of the gun buyback, local adoption of Daubert, and more in my latest Maryland policy roundup [Free State Notes; plus redistricting updates]
  • “Despite Losing Its Copyright Case, The State Of Georgia Still Trying To Stop Carl Malamud From Posting Its Laws” [Mike Masnick, TechDirt, earlier]

“Why Doesn’t the FBI Videotape Interviews?”

For the FBI to videotape the interviews it conducts would presumably allow an improvement in accuracy over note-taking, an important issue when statements can lead to criminal conviction (either on underlying charges or on charges of lying to the government). They would also permit improved oversight of how well the FBI does its work. So why did FBI guidelines forbid the practice until 2014, and even now establish a presumption of recording only for custodial interviews? [Alex Tabarrok citing Michael Rappaport, Law and Liberty and Harvey Silverglate 2011]

OSHA drones flying over your workplace

“‘That buzzing noise over a construction site could be an OSHA drone searching for safety violations,’ Bloomberg Law reports, linking to a May 18, 2018 DOL memorandum obtained through a Freedom of Information Act request. Yes, your friendly neighborhood OSHA inspector is now authorized by the Labor Department ‘to use camera-carrying drones as part of their inspections of outdoor workplaces.'” And while current procedures call for obtaining employer consent before sending the spycams aloft, thus avoiding Fourth Amendment challenge, employers who refuse such consent “risk the ire of the DOL, with serious consequences. Nothing is more likely to put a target on an employer’s back for multiple and frequent future investigations than sending a DOL investigator away from your doors. Refusing consent will label you at the DOL as a bad faith employer that deserves closer scrutiny. This I know through experience practicing before DOL and as a former Administrator of DOL’s Wage & Hour Division.” [Tammy McCutchen, Federalist Society]

And speaking of the Fourth Amendment (if not of OSHA), here is a Cato Daily Podcast with Caleb Brown, Julian Sanchez, and Matthew Feeney on how courts think about rights against unreasonable search and seizure in the digital age, and what could be done to improve protections.

Land use and zoning roundup

  • Minneapolis enacts major relaxation of residential zoning, issue has united ideological opposites [Ilya Somin; Christian Britschgi; Somin on developments elsewhere]
  • “The Disconnect Between Liberal Aspirations and Liberal Housing Policy Is Killing Coastal U.S. Cities” [Better Institutions]
  • “Steelmanning the NIMBYs” [Scott Alexander, and a response from Michael Lewyn] Ben Carson battles the NIMBYs [Christian Britschgi]
  • “The use of new urbanist codes to promote inner-suburban renewal pose two distinct problems,” erosion of rule of law and high compliance costs [Nicole Garnett at Hoover conference on “Land, Labor, and the Rule of Law,” related video]
  • Obscure zoning change could give NYC politicos a lot of new leverage over hotel developers [Britschgi]
  • Cities are primarily labor markets, ordinances to suppress informal shanty town settlements commonly fail, and more insights from new Alain Bertaud book on markets and cities [Tyler Cowen]

Our inside tips vs. your inside tips

Concurring in a Second Circuit opinion declining to overturn an insider trading conviction in the case of U.S. v. Walters, Judge Dennis Jacobs points out “egregious” FBI leaks and “notices the irony that Walters and the FBI agent both apparently misused confidential information, but that only one of them is going to jail.” [Ira Stoll, Future of Capitalism]

A shaken baby syndrome researcher reconsiders

British neuropathologist Waney Squier spent many years as an expert witness in court assisting in the prosecution of defendants accused of causing Shaken Baby Syndrome. Then a closer engagement with the evidence caused her to change her mind — and the story that follows, which she tells in this TEDx Wandsworth talk, must be heard to be believed. Sue Luttner has more for the USC Annenberg Center for Health Journalism. More on the story: Jon Robins, The Justice Gap; Theodore Dalrymple, Spectator.

More: “Judge orders release of woman who served 11 years behind bars in grandson’s death” [Marisa Gerber, L.A. Times; earlier on shaken baby syndrome] More about Deborah Tuerkheimer’s 2014 book Flawed Convictions, which I haven’t seen, is here.

Schools and childhood roundup

  • “It also highlights the shortcomings of federal education [privacy] laws that protect even admitted killers like [the Parkland, Florida school gunman] who are no longer students.” [Brittany Wallman, Megan O’Matz and Paula McMahon, South Florida Sun Sentinel]
  • Germany forbids homeschooling and the European Court of Human Rights has just upheld the removal of four children from their parents’ home over the issue [BBC] Is there a constitutional right to homeschool in the U.S.? [Eugene Volokh]
  • By contrast, claims of a federal constitutional right to education tend to amount to a contemplated way for courts to order spending hikes for public schools, as many already do under state constitutions, a bandwagon the U.S. Supreme Court declined to join in San Antonio v. Rodriguez [Alia Wong, The Atlantic on Rhode Island suit]
  • Read and marvel at a waiver and indemnity form for letting an 8 year old walk home a block by herself [Let Grow] “Nine-Year-Old Boy Leads The Way As Colorado Town Legalizes Snowball Fights” [Bill Galluccio, iHeartRadio]
  • Texas school district settles case of student expelled for not standing during Pledge of Allegiance [Massarah Mikati and Gabrielle Banks, Houston Chronicle via Sarah McLaughlin and Popehat (“Alternative headline: Expensive, Uncertain, Stressful Federal Lawsuit Required To Force Texas School To Acknowledge Right Unequivocally Established By Supreme Court In 1943; Taxpayers To Pay Costs Of Lawsuit; Lawless Administrator Will Face No Consequences”)]
  • Latest leave-kid-in-car-for-a-few-minutes horror: mom arrested, charged with contributing to delinquency of minor (to whom nothing had happened) [Lenore Skenazy]
  • “The Trump administration got it right on school-discipline policy” [Hans Bader letter, Washington Post]

ADA: two gleams on a dark horizon

Ohio has passed a bill giving targets of ADA accessibility complaints a chance to fix the issue before becoming liable for attorneys’ fees, and a California state judge has ruled that the state’s jackpot Unruh Act does not cover website accessibility claims. Those are two bits of favorable news amid a lot of continued bad news, I argue in a new Cato post.

Related: Domino’s argues before a Ninth Circuit panel in a web accessibility case [Kristina Launey, Seyfarth Shaw]:

Domino’s argued, as a possible explanation for DOJ’s inaction: “there is no such thing as an accessible website, and there never will be.” He cited the plaintiff’s expert’s statement in Winn-Dixie, also cited by the Eleventh Circuit judges in that oral argument, that the expert had never seen a website that complies with the Web Content Accessibility Guidelines (WCAG). To illustrate the difficulty businesses face in applying the guidelines, Domino’s posited how detailed the alt-text behind a picture of a basketball needs to be to conform to the guidelines – if it has LeBron James’s autograph on it, for example, does the alt-text need to go to that level of detail, or can it just say “basketball.” He thinks the regulatory effort was stymied because the DOJ couldn’t “wrap its head around” this.

More: Mark Pulliam at City Journal on a serial plaintiff’s suit against the entertainer’s website Beyonce.com.

Cato challenges SEC gag-order settlements

When the Securities and Exchange Commission settles with defendants, it extracts gag orders forbidding them forever after from making or causing to be made “any public statement denying, directly or indirectly, any allegation in the complaint.” We noted that fact briefly in yesterday’s roundup adding the question: Is it constitutional for the government to do that?

It isn’t according to the Cato Institute, which wants to publish as a book a businessman’s personal memoir telling his side of the story about his legal battles with the SEC, but cannot do so given that he consented to a settlement containing the gag order. Cato, represented by the Institute for Justice, has now filed suit seeking a court determination that the government cannot use gag orders in settlements to silence those it accuses of wrongdoing. [Clark Neily, Cato at Liberty]

IJ’s press release about the case has fun with redaction:

January 9 roundup

  • Maker of Steinway pianos threatens legal action against owners who advertise existing instruments for sale as used Steinways if they contain other-than-factory replacement parts [Park Avenue Pianos]
  • When the Securities and Exchange Commission settles with defendants, it extracts gag orders forbidding them to talk about the experience. Is it constitutional for the government to do that? [Peggy Little, New Civil Liberties Alliance/WSJ] Update: Cato is suing about this on behalf of former businessman who wants to write book about his experience in court against the SEC [Clark Neily]
  • Judge preliminarily enjoins New York City ordinance requiring home-sharing platforms like AirBnB to turn over to authorities “breathtaking” volume of data about users [SDNY Blog]
  • U.S. Chamber’s top ten bad lawsuits of 2018 [Faces of Lawsuit Abuse] “The Most Important Class Action Decisions of 2018 and a Quick Look at What’s to Come” [R. Locke Beatty & Laura Lange, McGuire Woods]
  • “Small aircraft engines are much less reliable than automobile engines. Why? Well, they all must be FAA certified, and it’s not worth the cost to certify, say, a new model of spark plug.” [John Cochrane, who gives HIPAA and military examples too]
  • “Why logos and art are sometimes blurred on reality TV shows” [Andy Dehnart, Reality Blurred, 2017]