Report: John Edwards plans to launch new plaintiff’s firm in Raleigh. [CNN]
Archive for June, 2013
Disabled tour guides at Disney, cont’d
NBC Today investigates and finds that yes, there does seem to be something to those stories about tactically using disabled passes to steer paying clients past the long lines (earlier).
Judges who wear “Bad is my middle name” t-shirts…
…are likely to be bad news in more ways than one [Belleville, Ill., News-Democrat on arrest of St. Clair County, Ill. Circuit Judge Michael Cook] St. Clair County is adjacent to Madison County in the Metro-East area of Illinois near St. Louis, and shares in its reputation as a “difficult” jurisdiction for unwary litigants. More: AP today.
A wee dram, assisted by a red Solo cup
“Plans to ban the pint glass from pubs throughout the Highlands of Scotland have sparked outrage. The traditional vessel is already outlawed in nightclubs in the Highlands, which are forced to serve all drinks – including champagne, cocktails and the finest malt whiskies – in plastic containers after 9pm because of police fears over potential injury.” The Highland Licensing Board is now proposing to extend the scheme further, against objections from pub owners as well as critics of the Nanny State generally. [Telegraph]
After furor, feds walk back campus speech/discipline code a bit
Following a widespread outcry, the Education Department’s Office of Civil Rights appears to be backtracking a bit in its very ambitious “blueprint” which colleges and universities must follow in the name of combating sexual assault. In particular, it now says it does not intend to require universities to punish speech and other conduct that is not objectively offensive, or that is too trivial or transitory to create a “hostile environment” as defined by court precedent. However, it does continue to insist that such behavior is “harassment” and that schools must make it “reportable,” that is, be willing to open grievance and complaint processes to document it. This is really no more acceptable than its first position, for reasons outlined by the Foundation for Individual Rights in Education (FIRE), which has been following the issue. [FIRE, more, Robby Soave]
I’ve got an article on the controversy due to appear in a forthcoming issue of Commentary. Earlier here, here, and here.
More: Rob Jenkins in Chronicle of Higher Education on “Purging My Syllabus.”
Maryland v. King: Scalia and the genetic panopticon
Yesterday the Supreme Court decided it was okay to require arrested persons to submit to DNA testing meant to match them to unsolved crimes. [Maryland v. King; Robert Kaiser, Washington Post; Nina Totenberg, NPR] In an impassioned dissent joined by liberals Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Justice Antonin Scalia warned that an important civil liberties line is being crossed as the Court now approves suspicion-less searches of persons at a stage at which the law presumes them innocent, without any primary motivation except to gather evidence of unrelated crime.
I’ve got an article in The Daily Beast this morning on the Scalia dissent and its warnings that lawmakers may soon embrace a genetic surveillance state in the name of security. Excerpt:
In his dissent, Scalia warns of such a “genetic panopticon.” (The reference is to Jeremy Bentham’s idea of a prison laid out so that inmates could be watched at every moment.) And it’s closer than you may think. Already fingerprint requirements have multiplied, as the dissent points out, “from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license” in some states. DNA sample requirements are now following a similar path, starting reasonably enough with convicts before expanding, under laws passed by more than half the states as well as Maryland, to arrestees. (“Nearly one-third of Americans will be arrested for some offense by age 23.”) Soon will come wider circles. How long before you’ll be asked to give a DNA swab before you can board a plane, work as a lawn contractor, join the football team at your high school, or drive?
With the confidence that once characterized liberals of the Earl Warren–William Brennan school, Scalia says we can’t make catching more bad guys the be-all and end-all of criminal process:
“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail. … I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”
More: I’ve got this related piece in Newsweek on the Justices’ shifting Fourth Amendment alignments. Thanks to Glenn Reynolds for the Instalanche. And other commentaries from Daniel Fisher, Lowering the Bar (on the Jeremy Bentham angle; Scalia’s dissent mentions Bentham twice; Scott Greenfield; Julian Sanchez; Jacob Sullum). And Mississippi has just announced plans to match offspring of underage mothers to responsible fathers through DNA database checks based on umbilical cord blood. [NPR]
Outrageous: how an ObamaCare slush fund pays for nanny-state lobbying
Did you know that the Affordable Care Act creates an enormous, multi-billion-dollar slush fund — in the out years, it will raise $2 billion a year in perpetuity — for the federal government to spend on more or less anything that might “improve health and help restrain the rate of growth” of health-care costs? That the spending can bypass the Congressional appropriations process, and is rife with expenditures for the purposes of lobbying government itself, which is supposed to be an unlawful use of federal funds?
Somehow it didn’t sink in until I read this excellent investigation in Forbes by Stuart Taylor, Jr., the distinguished commentator and journalist now associated with the Brookings Institution. Because almost any cause arguably advances health, the administrators end up with close to unlimited discretion as to how to spend the money, which results in the usual array of goofy-sounding grant activities ranging “from ‘pickleball’ (a racquet sport) in Carteret County, N.C. to Zumba (a dance fitness program), kayaking and kickboxing in Waco, TX.”
It’s tailor-made for log-rolling and rewarding local friends, but the dangers go beyond that. In particular, as outraged Republicans from Fred Upton (R-Mich.) in the House to Susan Collins (R-Me.) in the Senate have been documenting, large sums from the program have been devoted to the purpose of lobbying for the passage of legislation at the local and state level — notwithstanding specific statutory language making that an unlawful way of spending money raised from federal taxpayers.
To quote Taylor:
* In Washington state, the Prevention Alliance, a coalition of health-focused groups, reported in notes of a June 22, 2012 meeting that the funding for its initial work came from a $3.3 million Obamacare grant to the state Department of Health. It listed a tax on sugar-sweetened beverages (SSB), “tobacco taxes,” and increasing “types of outdoor venues where tobacco use is prohibited” as among “the areas of greatest interest and potential for progress.”
* The Sierra Health Foundation, in Sacramento, which received a $500,000 grant. in March 2013, described its plans to “seek local zoning changes to disallow fast food establishments within 1,000 feet of a school and to limit the number of fast food outlets,” along with restrictions on fast food advertising. A $3 million grant to New York City was used to “educate leaders and decision makers about, and promote the effective implementation of. . . a tax to substantially increase the price of beverages containing caloric sweetener.”
* A Cook County, Ill. report says that part of a $16 million grant “educated policymakers on link between SSBs [sugar-sweetened beverages] and obesity, economic impact of an SSB tax, and importance of investing revenue into prevention.” More than $12 million in similar grants went to groups in King County, Wash. to push for changes in “zoning policies to locate fast-food retailers farther from . . . schools.” And Jefferson County, Ala., spent part of a $7 million federal grant promoting the passage of a tobacco excise tax by the state legislature.
These aren’t isolated flukes: they look very much like the normal and planned operation of the program. A $7 million grant to activists in the St. Louis area went in part toward lobbying for the repeal of a state law barring municipal tobacco taxes. The Pennsylvania Department of Health reported on how it used a $1.5 million federal grant: “210 policy makers were contacted . . . 31 ordinances were passed . . . there were 26 community presentations made to local governments .. . and 16 additional ordinances were passed this quarter, for a cumulative total of 47.”
This is outrageous. Congress has enacted and reiterated the ban on lobbying with federal funds because of the obvious unfairness of requiring taxpaying citizens to support political efforts of which they disapprove. Now a combination of the most politicized sector of public health activism (which likes to dictate how people live) and a cross-section of the local political class (which likes to find new ways of raising taxes) is getting massive federal subsidies to pursue such lobbying, often on a scale that can bulldoze disorganized local opposition. If you were wondering why some bad new ideas for local legislation (e.g., zoning to keep fast-food restaurants out of big-city neighborhoods) seem to be everywhere despite a tepid level of voter enthusiasm, now you know. You’re paying for them to be everywhere.
I joined host Ray Dunaway on Hartford’s WTIC this morning to talk about the issue.
P.S. Thanks to commenter gitarcarver for pointing out this April report on the problem by the investigative group Cause of Action. (& David Catron, American Spectator)
International law roundup
- U.N. Committee on the Elimination of Racial Discrimination to Germany: to comply with your treaty obligations, you must punish this insensitive discussion of immigrants [Volokh, Bader]
- California’s Armenian genocide law entrenches on federal foreign affairs power [Ku/OJ]
- Heritage Foundation urges feds to overrule state marijuana laws on grounds of international treaty obligations [via @LucyStag]
- UN conventions ban torture, but that can bear meanings very different than in common parlance [Wesley Smith, Weekly Standard]
- Kiobel-aftermath marathon at Opinio Juris: Spiro, Lederman, Ku, Bellinger and Kontorovich, Alford, Phillips, Moyn, earlier here, here. More: Eugene Kontorovich podcast, Federalist Society.
- Underreported: how international vote buying influences outcomes in UN, similar bodies [Natalie Lockwood/OJ]
- Adding a Protocol: U.N. human rights chief “today welcomed the birth of a new mechanism which will empower individuals to seek out justice when their rights to food, adequate housing, education or health are violated.” [UN]
Update: Sears v. Butler
Here comes the U.N. disabled-rights treaty again
Backers may mount a new push for Senate ratification of a treaty that signs away national sovereignty over various not-unimportant areas of domestic policy, on the rationale that its effects will be mostly symbolic since we have already enacted the far-reaching Americans with Disabilities Act (ADA). Iain Murray and Geoffrey McLatchey note that despite claims by proponents from President Obama on down, it is simply untrue that the Convention on the Rights of Persons with Disabilities (CRPD) does no more than elevate into permanent treaty status the ADA’s requirements:
…its provisions far surpass the ADA’s.
For example, the convention’s Article 27, which prohibits “discrimination on the basis of disability with regard to all matters concerning all forms of employment,” is a giant leap from the ADA’s employment standards stating, “no covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” [Emphases added]
“Covered” entity and “qualified” individual are two major constraints on the regulatory scope of the A.D.A., and that’s just the start of the many ways in which the CRPD is of broader scope. I give many more examples here (see also).
Murray and McLatchey also note that
The CRPD also requires the United States to set up a propaganda agency. Yes, you read that right. Article 8 states that signatories must take “immediate and effective measures … to raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities.” It becomes the federal government’s duty to “combat stereotypes… in all areas of life” by “initiating and maintaining effective public awareness campaigns.”
Hans Bader points out another danger:
UN committees like to define free speech as discrimination against minority groups in violation of international treaties, making it dangerous to ratify such treaties. For example, the U.N. Committee on the Elimination of Racial Discrimination has ruled Germany violated international law by not prosecuting a former legislator for remarks to a scholarly journal about Turkish-immigrant welfare recipients that were deemed racially offensive. The UN committee ruled Germany’s failure to prosecute the speaker violated the International Convention on the Elimination of All Forms of Racial Discrimination.
While “anti-disability” speech is perhaps not as familiar concept than speech which offends sensibilities of race, religion, or gender, existing disabled-rights law has generated numerous cases in which speech considered insensitive or hurtful toward persons based on physical, mental, emotional or behavioral disabilities is taken as evidence of an unlawful “hostile environment.”