Patient undergoing sedation for colonoscopy leaves cellphone recording, which picks up a string of insulting remarks made by anesthesiologist and others while he was under. The comments alleged to be defamatory were mostly heard only by other health workers present, so reputational damages are at best uncertain, but a Northern Virginia jury valued the sheer indignity of it all at $500,000. [Washington Post, Orlando Sentinel]
Archive for June, 2015
“Stop calling it fair housing…”
…There’s nothing fair about it. I’ve got a post at Cato about yesterday’s important Supreme Court victory for the Left in which Justice Anthony Kennedy joined the four liberals to hold that current federal law allows housing suits based on “disparate impact” theories. I explain why pundits are being silly when they claim that the Court “saved” the Fair Housing Act or that a contrary ruling would have “gutted” it, and why Samuel Alito and Clarence Thomas were right in their dissents to spotlight the shaky basis of the theory in the statutory text, going back to the original disparate-impact case, Griggs v. Duke Power.
True, Kennedy did throw a sop or two about how courts applying disparate impact need to avoid pressuring actors toward the potentially unconstitutional result of quotas. Although some consider these bits of wording significant, I suspect that will mean about as much as similar sops that the Court has thrown over the years about avoiding quotas in employment and education, i.e., not much. Others, such as Cory Andrews of WLF, point to Kennedy language suggesting (on what statutory basis is not entirely clear) that disparate impact scrutiny might be limited to “artificial, arbitrary, and unnecessary” practices, a narrowness of approach not seen in other disparate-impact contexts. How administrable such a standard might prove, or how much litigation will be needed before it is clarified, is anyone’s guess.
Some further background on Texas Department of Housing and Community Affairs v. Inclusive Communities Project: SCOTUSBlog, Cato’s brief in the case and earlier coverage by Ilya Shapiro and company here and here, and my podcast.
Franchises fear “devastating” change to their business model
If the National Labor Relations Board (NLRB) succeeds in its aim of holding franchisors legally liable for labor law violations by franchisees, it’s likely to upend the terms on which small and fledgling operators gain access to marketplace opportunities through franchising [Lydia DePillis, Washington Post]
The rest of the Supreme Court’s term
With three decision days remaining — today, tomorrow, and next Monday — Ilya Shapiro outlines the remaining seven cases and their importance, including Texas Dept. of Housing v. Inclusive Communities Project (are defendants liable under “disparate impact” theories in housing discrimination law?) and King v. Burwell (interpreting Congress’s language on Obamacare subsidies).
Update: Both of those cases were decided this morning. In King v. Burwell, the Court broke 6-3 for the administration to uphold the IRS’s rewrite of ObamaCare subsidies. The Court keeps on hand a supply of what one observer called Get Out Of Bad Drafting Free cards, but as Justice Scalia noted in his “SCOTUScare” dissent, awards them only for certain laws. And the housing case was a big win for the left as Justice Anthony Kennedy joined the four liberals to uphold housing suits based on “disparate impact” theories. His opinion throws a sop or two about how disparate impact shouldn’t imply quotas, which I suspect will mean about as much as similar sops the Court has thrown over the years in employment and education, i.e., not much. (P.S. As one reader rightly objects, the problem in Burwell wasn’t so much bad drafting as drafting that failed of its intended coercive effect and therefore needed to be revised if there was to be a Plan B. More on King v. Burwell: Roger Pilon and Ilya Shapiro at Cato)
Private prison lobbying — and the public kind
If you worry about the potential harm of lobbying and influence by private prison operators — and that’s a reasonable worry, given past scandals — you ought to be all the more worried about lobbying and influence by guards’ unions and other public prison interests. Because that’s much bigger. [Ed Krayewski, Reason; earlier]
Federal court: SEC cannot use employees as judges
The Securities and Exchange Commission practice of trying many complaints before administrative law judges (ALJs) who are its own employees, rather than before federal courts, has grown increasingly controversial lately and now one defendant’s challenge to the practice has prevailed — at least for the moment. A federal judge in Atlanta has ruled that because ALJs are “inferior officers” under the constitution, they cannot be simply employed like other federal workers by an agency like the SEC. Writes Thaya Knight at Cato, “there is a fairly easy fix available to the SEC: the five commissioners can simply appoint the existing ALJs to their current positions…. [but] other agencies could face greater difficulties.” But Daniel Fisher quotes Prof. Philip Hamburger as saying the ruling could still prove “profoundly important,” leading to the unraveling of other aspects of administrative law arrangements within agencies. More: W$J (commission fighting off at least seven legal challenges; in one instance it “asked one of its own judges to submit a formal statement about whether he has ever felt pressure to favor the agency”), Adam Zimmerman/PrawfsBlawg.
“Is the Discovery Problem Solved?”
“Long anticipated changes to the Federal Rules of Civil Procedure were approved by the United States Supreme Court on April 29, 2015. Absent congressional action, which is not expected, these new rules will take effect December 1, 2015. The most significant changes are in the area of discovery and there is hope among the defense bar that these changes may result in significant reductions in the cost and burden of discovery.” But will they? [James O’Neal and John Schlafer, Faegre Baker Daniels/JDSupra]
Trans fat ban: they’ll be back for seconds
“The FDA’s move to make transfats harder to use has broad implications for consumers, businesses and the power of government to deny people meaningful choices.” It won’t be the last ingredient valued by some consumers that “public health” advocates seek to ban or limit, either. I discuss with Caleb Brown in this new Cato podcast. More background here.
June 24 roundup
- Judge lifts gag order against Reason magazine in commenter subpoena case, and U.S. Attorney’s Office for Manhattan is shown to have behaved even more outrageously than had been thought [Nick Gillespie and Matt Welch, Ken White/Popehat (magistrate’s approval of gag order looks an awful lot like rubber stamp; AUSA directly contacted represented party), Paul Alan Levy (when bloggers push back, gag orders tend to get lifted), Matt Welch again with coverage roundup]
- Maryland authorities clear “free range” Meitiv family of all remaining charges in kids-walking-alone neglect case [Donna St. George, Washington Post]
- Disgraced politico Monica Conyers sues McDonald’s over cut finger [Detroit News]
- American Law Institute considers redefining tort of “battery” to protect the “unusually sensitive”, Prof. Ronald Rotunda on problems with that [W$J]
- “Did you ever falsely represent yourself as an attorney?” asks the lawyer to her client in front of reporter [Eric Turkewitz]
- Feds endorse alcohol-sniff interlock as new-car option, critics say eventual goal is to force it into all cars, assuming rise of self-driving cars doesn’t moot the issue first [Jon Schmitz/Tribune News Service]
- Echoes of CPSIA: regulatory danger is back for smaller soap and cosmetic makers as big companies, safety groups combine to push Personal Care Products Safety Act [Handmade Cosmetic Alliance, Elizabeth Scalia, Ted Balaker, Reason TV and followup (Sen. Dianne Feinstein objects to “nanny of month” designation, points to threshold exemptions for smaller businesses), earlier on predecessor bills described as “CPSIA for cosmetics”, National Law Review (panic over recent NYT nail salon expose might contribute to momentum)]
SCOTUS: raisin seizure requires compensation
It’s raining raisin rights! The Supreme Court has ruled 8-1, as a Cato amicus brief had urged, that the Horne family of California have a Fifth Amendment right to compensation for the government’s seizure of half their raisin crop as part of an agricultural marketing order program. Only Justice Sotomayor dissented. There was also a 5-3 split on the question of how compensation should be calculated, with the majority joining Chief Justice Roberts in holding that the Department of Agriculture was bound by its own estimate of the value of the raisins taken. Earlier on Horne v. USDA here.
Robert Thomas at Inverse Condemnation rounds up reactions. Commentary: Ilya Shapiro, Roger Pilon (and earlier on the Magna Carta angle), and Trevor Burrus/Forbes (good news: Court strikes down really awful New Deal farm program. Bad news: it took 80 years), all from Cato; Iain Murray, Ilya Somin. And thanks to Instapundit guestblogger Virginia Postrel for linking to our past coverage.