The great thing about discrimination-in-public-accommodations law is all the social harmony: barber near Pittsburgh fined $750 by state of Pennsylvania for declining to cut women’s hair [Scott Shackford, Reason]
Archive for September, 2015
Crime and punishment roundup
- More dangerous today than in past to be a cop in America? Available evidence suggests the opposite [Radley Balko, more]
- New York Times covers shaken-baby syndrome with look back at Louise Woodward trial [Poynter; Boston Globe on shaken baby syndrome in May; earlier]
- Study from National Association of Criminal Defense Lawyers (NACDL) on gaps in indigent defense misses chance to highlight voucher/choice remedies [Adam Bates, Cato]
- The far reach of Sarbanes-Oxley: “You Can Be Prosecuted for Clearing Your Browser History” [Juliana DeVries, The Nation]
- “Has the ‘Responsible Corporate Officer’ doctrine run amok?” [Bainbridge, earlier on Quality Egg/U.S. v. DeCoster case and mens rea]
- Federal judge, in April: U.S. Attorney Bharara’s publicity tactics against Sheldon Silver strayed close to line [ruling via Ira Stoll]
- Suspending drivers licenses over unpaid tickets can push poor motorists into downward spiral [Milwaukee Journal Sentinel via Balko]
Pork promotion’s perpetual payments
It’s wrong for the law to coerce businesses into paying for lobbying, but that can be hard to prevent from happening in the world of government-mandated agricultural marketing checkoffs [Danny Vinik, Politico via Alex Tabarrok]
Environment roundup
- Study: California’s high-profile CEQA environmental-review law is used heavily against public, not just private projects, particularly environmental, transit, and renewable-energy projects [Holland & Knight; more, George Skelton, L.A. Times] Estimate: needless delays in infrastructure permitting methods cost U.S. economy $3.7 trillion [Common Good]
- “‘[F]ive White Pelicans, twenty (regular old) Ducks, two Northern Shoveler Ducks, four Double Crested Cormorants, one Lesser Scaup Duck, one Black-Bellied Whistling Tree Duck, one Blue-Winged Teal Duck, and one Fulvous Whistling Tree Duck’ met their untimely end in an open oil tank owned by CITGO. Did CITGO ‘take’ these birds in violation of the Migratory Bird Treaty Act of 1918? Fifth Circuit: There’s a circuit split, but we say no.” [John Ross, Institute for Justice “Short Circuit”]
- Judge: no, “waters of the United States” don’t include dry land over which water sometimes flows [Andrew Grossman, Cato]
- Just as we were getting ready with jokes about a wind shortage comes word that maybe there isn’t one [Tyler Cowen, AWEA blog]
- After the West’s outrage-binge over lion trophy hunting, African villagers feel the repercussions: “Now they are going back to hating animals.” [New York Times]
- “Solyndra: A Case Study in Green Energy, Cronyism, and the Failure of Central Planning” [David Boaz, Cato]
- Serving municipal water without charges makes for both an economic and an environmental fiasco. Who will tell that to Ireland’s #right2water marchers? [Telesur TV, Charles Fishman/National Geographic]
Keeping firefighters busy
Fire unions have secured laws requiring that firefighting units be deployed to mishaps at which there is no fire risk [Coyote]
“Petco won’t sell goldfish to Persians on spring equinox, lawsuit says”
Discrimination in public accommodations claim: California plaintiff Sam Mojabi alleges in a lawsuit that Petco has a “systematic” practice of suspending sales of goldfish around the time of the spring equinox. Following the circulation of reports that some families celebrate the Middle Eastern spring-equinox new year’s holiday Nowruz, influenced by Zoroastrian traditions, with a display of live goldfish, some store personnel sought to prevent the sale of the fish to Persian/Iranian buyers for fear the animals would not be cared for well after the holiday. [ABA Journal] Ten years ago Britain’s then-Labour government backed off a proposed ban on the awarding of goldfish in a plastic bag as a fairground prize, and more recently an elderly shopkeeper was “given an electronic tag and curfew for selling a goldfish to a 14 year-old” in a sting operation despite a law limiting sales to over-16s.
“Candidate Lessig’s bad example”
Lawrence Lessig claims the mantle of the insurgent 1969 Eugene McCarthy campaign. But the McCarthy campaign couldn’t have gotten off ground under Lessig’s own proposals on campaign finance, as Cato vice president John Samples points out in this new Cato video.
My Newsweek piece on the First Amendment Defense Act (FADA)
A bill called the First Amendment Defense Act, or FADA, with many Republican sponsors, would establish a new protected class in discrimination law, enabling what might develop into a major new sector of litigation. It would bestow on advocates of putative traditional family values — but not their opposite thinkers — new legal rights to sue over adverse government treatment of any kind, including the withholding of subsidies, government contracts or indeed any other public action. The protected status would even extend to acts taken as public employees and clothed with official force. It’s an extraordinarily one-sided, wildly impractical set of proposals whose theme, I argue at Newsweek, is not pluralist accommodation but merely to empower one side, when wielding public authority or tax moneys, to engage in a wide range of punitive and coercive measures against their culture war opponents. And that has less than nothing to do with the First Amendment.
Whole piece here. Dale Carpenter at Volokh Conspiracy has some kind words for my piece along with thoughts about the possible constitutional infirmities of the draft bill’s blatant enlistment of government power on behalf of one viewpoint and set of beliefs as against others; he also links to this Christianity Today piece by three leading religious liberty scholars, Richard Garnett, John Inazu, and Michael McConnell, who acknowledge some of the problems with FADA in present form while urging support for a less sweeping measure (“We think the best approach is to tailor FADA to the core area of concern: religious nonprofits.”)
P.S.: Stephen Bainbridge reprints a letter in which I link and summarize some of my recent writing on religious accommodation.
California’s Unruh Act “provokes outrage”; it’s “invoked by the wrong people”
We’ve often covered the outrageous results of California’s Unruh Act, a lawyer-enriching, endlessly abusable enactment that awards damages without actual injury, generates surprising new grounds for litigation, and tilts the playing field of litigation toward plaintiffs with one-way fee shift entitlements and other goodies. Now, whether or not with dollar signs twinkling in their eyes, some busybodies have invoked it to go after a women-in-tech conference over alleged sex discrimination, and a whole new generation of commentators have discovered that in areas like the Unruh Act, “the legal system allows meritless claims to extort compliance” and that the “threat of a lawsuit is usually enough to shut a company down, even if the company stands a good chance of winning in court, simply for one reason: it costs less to settle than it does to fight in court.” Ken at Popehat does not offer a warm outpouring of sympathy:
Here’s the thing: if you only wake up to how broken the system is when it’s abused by one of your ideological enemies, you’re a vapid partisan hack. The legal system — including, but not “only” or “especially” civil rights laws — is a tool of extortion, deceit, and thuggery. I’ve seen nothing in my 21 years as a lawyer to make me think that civil rights plaintiffs are any more likely than other plaintiffs to abuse the system. But some laws lend themselves to abuse — like laws that are deliberately broad, deliberately flexible, and that award attorney fees only to prevailing plaintiffs, removing all deterrents against frivolous suits and piling on incentives to cave to extortion. The result is a system that’s profitable for lawyers, mediocre for individual plaintiffs, and a constant burden on potential defendants in a way that utterly fails to distinguish between wrongdoers and the innocent.
If you’re only irritated by this when a group of Wrong People target a group of Right People, you’re not to be taken seriously.
Flight attendant: my religion entitles me to avoid serving liquor
New at Politico Europe, my piece on the Equal Employment Opportunity Commission complaint by a Muslim flight attendant, covered here last week, who doesn’t want to serve alcohol (“scruples about screwpulls”) and what, if anything, it has in common with the Kim Davis case. (As a direct legal matter, not much.) I reference the EEOC v. Star Transport case:
Here’s the thing: The EEOC has already sided with Muslim employees who wish to avoid handling alcohol….If Charee Stanley or a future counterpart someday wins the right to bob and weave through the passenger cabin, handing out only beverages that meet with her spiritual approval, she’ll have this record of Congressional posturing to thank.
Surprisingly or otherwise, the pressure for federal law to become more indulgent toward private employees’ demands for religious accommodation — thus turning cases like Stanley’s into more likely winners — has come both from liberal lawmakers like John Kerry and Hillary Clinton and from conservatives like Rick Santorum and Bobby Jindal.
Related: “No one should have to choose between their career and religion,” proclaimed Stanley’s lawyer. Really? No one? Ever? [Andrew Stuttaford, Secular Right] My Cato colleague Ilya Shapiro on why West Coast florist Barronelle Stutzman is far more deserving of martyr status than Kim Davis (my two cents, leading to GoFundMe “campaign not found”). And dear #kimdavis meme-slingers: be advised that Dallas judges are under no legal obligation to do weddings [Taylor Millard, Hot Air]