Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2014

Supreme Court on racial preferences, cont’d

A few more notes on the case already covered yesterday in tweet form:

Scalia sets the stage beautifully: “[In this] jurisprudential twilight zone… we confront a frighteningly bizarre question: does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” The drama, however, is not destined to play out on that rhetorical stage, since all eight Justices, even Sotomayor and Ginsburg, claim to believe that the Equal Protection issue is only whether Michigan citizens chose a constitutionally valid method by which to end preferences.

To me, this much increased the interest of the case. The constitutionality of racial preferences as such has been thrashed out for years in so many high-profile Court decisions that anyone who cares has had ample chance to think about the issue. There has been far less attention to the unprincipled, un-administrable, substance-masquerading-as-procedure Reitman/Hunter/Seattle line of cases, by which the Court occasionally and selectively intervenes to reverse democratically arrived-at processes when they come out with the “wrong” policy answer. Scalia and Thomas are ready to overrule this bad line of cases directly; the plurality, for better or worse, are not (yet) willing to do so, and instead limit the cases’ reach in ways that neither Scalia nor Sotomayor find logically compelling.

Sotomayor’s mantra “Race matters” is likely to thrill some readers — it has already been in use for a while as a catch-phrase in academia and elsewhere — but as a device for organizing a legal opinion, it’s at best … imprecise. All the other Justices agree that race matters, but disagree on how. As Ilya Somin and David Bernstein point out at Volokh Conspiracy, Sotomayor also gerrymanders “race” in a way convenient to her purposes, using it to include Hispanic-Americans (who aren’t a race) while breathing not one word about Asian-Americans (a more genuine racial classification whose situation of being both historically disadvantaged *and* discriminated against in university admissions cries out for recognition). “Race matters,” indeed. More thoughts: Roger Pilon and Ilya Shapiro, Cato. (adapted newer version at Cato at Liberty, and thanks for SCOTUSBlog mention).

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Intellectual property roundup

  • Federal judge invalidates two patents Intellectual Ventures had used to sue banks [Ars Technica]
  • Is there an actual debate over the economic effects of stronger vs. weaker IP protection, or are people talking past each other? [Simon Lester, Cato]
  • “Teller Wins Lawsuit Over Copied Magic Trick Performance” [Hollywood Reporter] Custom, informal law enforce joke “property” among comedians [McGraw/Warner, Slate]
  • I read the news today, oh boy/ And now I have to pay a license fee/ [ABA Journal on actions against song lyrics sites; earlier here and here; h/t for joke to Rogers T.]
  • “Paper” town, placed by cartographer on map to foil plagiarism, springs into real life [Now I Know]
  • Unsuccessful courtroom demand for access to list of donors to “Save Podcasting Campaign” [EFF]
  • Idea of giving people copyright in their faces (as against facial-recognition systems) “has two demerits: it is unconstitutional, and it is insane. Otherwise, it seems fine.” [Info/Law via @petewarden]

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Schuette v. Coalition, in tweets

Yesterday the U.S. Supreme Court, over two dissents, ruled that the voters of Michigan were within their rights under the Constitution’s Equal Protection Clause to enact an amendment to the state constitution barring racial preference in public university admissions. (Earlier here, here, etc.) Justice Kennedy wrote a plurality opinion for three Justices, while Justice Scalia, joined by Justice Thomas, Justice Breyer, and Chief Justice Roberts wrote separate concurring opinions. Justice Sotomayor dissented, joined by Justice Ginsburg, and Justice Kagan was recused. Both sides maintained that the core controversy was not over whether Michigan was obliged to keep racial preferences as such, but rather over whether the state’s way of banning them (through voter constitutional amendment) had fallen afoul of the Court’s holding in earlier cases that the Equal Protection Clause requires that the political process itself not be arranged in ways unfavorable to minority interests.

I sent out tweets and retweets summarizing highlights of the Roberts, Scalia, Sotomayor, and plurality opinions and reprint them here, earliest first (starting with the Roberts and Scalia opinions).

More in a second post; and Hans Bader has an extensive analysis, including implications for costly preferences in public contracting.

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Radley Balko on structuring/”smurfing” laws

I’m a little late in getting to this, but last month Radley Balko wrote the definitive blog post on the appalling state of federal bank structuring law, which makes it a felony to arrange bank transactions in quantities of less than $10,000 so as to avoid reporting requirements that kick in at that threshold. He hits virtually every point we’ve made in this space over the past couple of years, including the trend toward “freestanding” structuring prosecutions not arising from any underlying criminal activity, the close connection to forfeiture law, the enlistment of banks as a covert surveillance/informant network not disclosed as such to customers, Congress’s removal of willfulness as a condition of the offense, the unusual concentration of cases coming out of the state of Maryland, the white-knight role played of late by the public-interest law firm Institute for Justice, and of course the jarringly atypical leniency extended to the most famous structurer of all, New York’s Eliot Spitzer.

The immediate news event that prompted the coverage, summarized by Eugene Volokh: a Seventh Circuit decision, in U.S. v. Abair, reversing and remanding for retrial the conviction of an Indiana woman convicted for withdrawing her own money from her bank in violation of the statute so as to finance her purchase of a house; the government took the house from her in forfeiture.

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Schools roundup

  • Excellent Mark Oppenheimer column cites new Cornell study: students deprived of whole milk and chocolate milk as choices “drank less milk, threw more milk away, and bought fewer school lunches over all” [New York Times]
  • “The process of tying curricular standards to federal money actually helps create the ‘ideological circus’ that [David] Brooks decries.” [Rick Hills, Prawfsblawg on Common Core]
  • School choice lawsuits and legislation news updates from Alabama, Alaska, Georgia, Kansas, Louisiana, North Carolina, and elsewhere [Jason Bedrick, Cato]
  • More applications of New Jersey’s pioneering “anti-bullying” law. And will it stand up in court? [Hans Bader, earlier here, etc.]
  • “When one New Zealand school tossed its playground rules and let students risk injury, the results were surprising” [Sarah Boesfeld, National Post (Canada)] Plenty of discussion of new Hanna Rosin piece “The Overprotected Kid” [Atlantic via Tabarrok; a contrasting view from Max Kennerly]
  • News you can use about applicability of Institutional Review Board regs to research on oneself [Michelle Meyer, Bill of Health] Another new blog about IRBs [Suffocated Science via Instapundit]
  • Community college suspends professor over Google Plus share of Game of Thrones quote on daughter’s T-shirt [Bergen Record]

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Allergic to vetoes?

President Obama has signed a bill he deems unconstitutional — it purports to (very slightly) restrict presidential authority to receive certain foreign ambassadors on U.S. territory — while issuing a signing statement calling the measure “advisory” [Josh Blackman] If Congress tries to get away with something unconstitutional, isn’t it more consistent with the President’s oath to defend the Constitution for him to veto it rather than sign-and-ignore?

One might sympathize (if not necessarily agree) with a President who gave up and signed a 400-page omnibus funding bill containing an unconstitutional provision on page 237 about the Cedar Rapids post office. But a bill whose whole point is unconstitutional is supposed to be the easy case, no?

More from Michael Ramsey at Originalism Blog, Mike Rappaport at the same, and Will Baude at Volokh Conspiracy.

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Peoria mayor sends cops after Twitter parodist

“Not long after learning about the parody Twitter account @Peoriamayor, the city’s real mayor, Jim Ardis, told police he wanted to find out who was publishing sometimes vulgar messages there, according to a search warrant filed Thursday. … Two judges signed off on warrants to get information from Twitter and Comcast. Another judge approved a Tuesday afternoon raid.” [Peoria Journal-Star via Scott Shackford/Reason; Justin Glawe, Vice]

P.S. Related from Starkville, Mississippi last year.

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“Denial of Disabled Lawyer’s Request For ‘Shadow’ Assistant Wasn’t Bias”

How far can an employee go in ADA demands before finally going too far? [Charles Toutant, New Jersey Law Journal]

The lawyer, a deputy attorney general known as E.H. in court papers, made 30 requests for special treatment in the course of his first year on the job—ranging from reserved indoor parking, adjusted timing on elevator doors, a grab handle in the rest room and transportation to court appearances—all of which were granted.

He sued because his 31st request—for a personal assistant who would “function as his shadow”—was refused.

On Thursday, an appeals court ruled that the Attorney General’s Office did not violate laws against disability discrimination. The court said deference was due the findings of the Civil Service Commission that an assistant was not warranted because it would not help E.H. address his weak job performance.

When the Americans with Disabilities Act was new, there was hopeful talk among some disability advocates of what some wary employers nicknamed “two-for-one” hiring — demands that a second employee be put on payroll to assist the first. While courts have generally declined to go along with this idea, it is sobering to think the issue might be close enough that the worker’s very poor job evaluations might have mattered one way or the other.

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