- High court should review Washington coastal exaction as a taking without just compensation [Ilya Shapiro and Jayme Weber, Cato, on Common Sense Alliance v. San Juan County]
- Redistricting: unanimous Court declines to strike down population variance that may have assisted Arizona plan in VRA compliance [ABA Journal]
- “Supreme Court Should Protect Workers Against Government-Union Collusion” [Ilya Shapiro and Jayme Weber, Cato on D’Agostino v. Baker, challenge to Massachusetts law designating day-care providers as state employees for purposes of unionization]
- Followup on CRST Van Expedited v. EEOC: “An open love letter to Justice Clarence Thomas” [Marcia McShane, earlier]
- “Supreme Court declines to reconsider deference to agency interpretations of agency regulations” [Jonathan Adler on cert denial in United Student Aid Funds, earlier here and here]
- “Supreme Court Kills Minimum Wage Lawsuit Against Seattle” [Connor Wolf/Daily Caller, earlier]
Archive for June, 2016
“Oil as the new tobacco” — and what that might mean
Promoters of the “Exxon Knew” climate denial subpoena campaign have made a point of saying they intend to repeat the playbook of the 1990s multi-state and federal tobacco litigation, this time with the energy industry and its various trade associations, allies, and non-profit/university well-wishers as targets. But what does it mean to repeat the tobacco playbook? As one who has written at length about that episode (along with various other authors including Cato’s Robert Levy, the late Martha Derthick, and Margaret Little) I can help spell out what that means. The public-sector tobacco litigation fell out of favor as a policy model because it was the scene of vast corruption fueled by the availability of billions in fees to politically favored private lawyers; because of its grotesque violations of elemental legal fairness, such as the enactment of statutes retroactively knocking out legal defenses for the state’s opponents; because of its quick-change remake of purported initial idealism into cash on the barrelhead as the primary driver of settlement; and because of its grave civil liberties violations such as the federal government’s assertion of a right to close down industry trade associations and seize their files. Are advocates of the new climate-denial litigation hoping for it to follow the same path? [Valerie Richardson, Washington Times, thanks for quoting me]
Thanks a lot but no thanks: Citigroup v. AT&T
Financial institution Citigroup says it has trademarked “ThankYou” as a marketing term in connection with customer loyalty and reward programs and is suing AT&T for using the term in its own new marketing campaign. [David Kravets, ArsTechnica]
Rauch: Bring back the political Establishment
When roving bandits appear on the scene, you begin to miss the old stationary bandits: Jonathan Rauch wants to bring back the political Establishment of days past, by revisiting primary and campaign-finance laws that were meant to curb the role of party regulars. [The Atlantic]
Bonus, Terry Teachout: “In a totally polarized political environment, persuasion is no longer possible: we believe what we believe, and nothing matters but class and power. We are well on the way … the gap that separates the two Americas has grown so deep and wide that I find it increasingly difficult to imagine their caring to function as a single nation for very much longer. …The main obstacle that stands in the way of the soft disunion of America is that Red and Blue America are not geographically disjunct, as were the North and South in the Civil War.”
This Land Is My Land copyright challenge
As I went walking I saw a sign there.
And on the sign it said “(C) — Guthrie estate”
But on the other side it didn’t say nothing,
That side was made for you and me.
“Following their successful actions to bring the songs ‘Happy Birthday’ and ‘We Shall Overcome’ into the public domain, New York law firm Wolf Haldenstein Adler Freeman & Herz are now taking on a similar action for the Woody Guthrie classic, ‘This Land Is Your Land.'” [IP Flow/Mimesis Law]
Back in 2004, when the successors in interest of Guthrie’s heirs threatened the writers of a politically oriented parody with copyright litigation, Fred von Lohmann of the Electronic Frontier Foundation wondered what Guthrie himself would have thought of the action, given that he once used a copyright notice that said:
This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.
The lyrics of “My Land,” including the “No Trespassing” verse lightly altered above, are here, complete with copyright assertion.
The IRS targeting scandal: merely “thoughtless” and “careless”?
The Washington Post has published my letter to the editor responding to an editorial that had depicted the Internal Revenue Service targeting episode as merely the “thoughtless” result of “carelessness” and “incompetence.” Yet the scandal wasn’t just the flagging of right-of-center (c)(4) groups for challenge not faced by their left-of-center counterparts, but the outrageous information demands placed on many of those groups, including copies of all literature distributed, transcripts of speeches and radio guest appearances, printouts of all social media output, names of both donors and family members, and more.
Earlier coverage here.
June 22 roundup
- Funny how the government sometimes regards our time as necessarily worth $15 an hour or more, and other times as worth far less [Coyote]
- “Trademark lawsuit over LARP archery gets thrown out of court” for lack of personal jurisdiction [Joe Mullin/ArsTechnica, earlier here, etc.]
- A sucker deal? Consumer class action alleges substitution of squid for canned octopus [Nick Farr, Abnormal Use]
- Those who knowingly send texts that distract drivers could face liability in Pennsylvania [ABA Journal]
- Zach Graves, “Optometrists Push For State Laws Blocking Online Eye Exams” [TechDirt]
- D.C. Circuit upholds net neutrality regulations in a “majority opinion…dripping with agency deference.” [Daniel Lyons, Jonathan Adler, Michael Greve]
See something, say something, then get ready for bias charges or a lawsuit
“The common thread among suspects in these mass shootings and terroristic incidents is not merely that they had mental health issues and an attraction to extremist political ideologies. In each case, the concerned people in those killers’ lives failed to speak up or their warnings were dismissed when they did.” And the structure of legal incentives created by wide-sweeping high-penalty discrimination and privacy laws (which cover categories like mental illness by way of the ADA) may not be entirely unrelated to that phenomenon. [Noah Rothman, Commentary] “No Psych Exam for Orlando Shooter Despite Odd Behavior, FBI Probes” [NBC News]
The furor over Judge Persky’s sentence
“More than a million people have signed petitions demanding the removal of Aaron Persky, the California state judge who sentenced Brock Turner, a Stanford swimmer convicted of three felony sexual-assault counts, to six months in jail, three years of probation, and lifetime registration on the sex-offender list.” How is the furor likely to affect the justice system? Three views from law professors: Jeannie Suk (from whom the above quote is taken), Howard Wasserman, Stephen Bainbridge.
Workplace roundup
- The proportion of jobs requiring a license has risen from roughly 5 percent in the 1950s to 25 percent now, and why that matters [Edward Rodrigue and Richard V. Reeves, Brookings] Signs of bipartisan agreement that occupational licensing has gone too far [J.D. Tuccille, Reason] And surprisingly or not, it’s emerged as an Obama administration cause [Matt Yglesias, Vox]
- “25 quick takes (no kidding!) on the EEOC’s proposed national origin guidance” [Robin Shea]
- “Trial lawyers’ pecuniary interests have shifted our focus toward termination decisions, instead of hiring and promotion practices” [Merrily Archer]
- Is it lawful to move full-time employees to part-time work to avoid ObamaCare mandates? [Jon Hyman, related]
- Florida Supreme Court decision spells Christmas for workers’ comp lawyers, and insurers proceed to file 17 percent rate increase, so everyone’s happy [Insurance Journal]
- “Uber and the gig economy’s existential litigation threat” [Alison Frankel] Labor union grip on state legislature imperils benefits of sharing economy [Steven Greenhut]