- Finally, some progress? White House releases “Housing Development Toolkit” urging local policymakers to expand by-right development, accessory dwelling units, pro-density rezoning [Jonathan Coppage, Washington Post; Vanessa Brown Calder, Cato]
- And see related: “Parking Requirements Increase Traffic And Rents. Let’s Abolish Them.” [Brent Gaisford, Market Urbanism] “America’s Ugly Strip Malls Were Caused By Government Regulation” [Scott Beyer]
- And yet more, stranded in Seattle: “Micro-Housing, Meet Modern Zoning” [Vanessa Brown Calder, Cato]
- California: “Coastal Commission Abuse Smacked Down by Court” [Steven Greenhut]
- “If firms refused to take direction, FDR ordered many of them seized.” For climate change advocate Bill McKibben, RICO-for-deniers is only the start [New Republic] Fan at New York Times eyeing McKibben to win Nobel [Timothy Egan]
- “Midnight Monuments: The Antiquities Act and the Executive Authority to Designate National Monuments” [Federalist Society podcast with Donald Kochan and Charles Wilkinson]
Archive for October, 2016
Suit: college football players employees under California law
A class action suit against the National Collegiate Athletic Association (NCAA) cites California law, as well as the federal Fair Labor Standards Act, to argue that college football players should be deemed employees subject to minimum wage and overtime law. I find it a stretch for reasons quoted in the report [Robert Teachout, SHRM]
Due process and the Megaupload case
Feds to fugitive principals of file-storage website: if you resist extradition, we’ll seize your assets and you have no right to offer evidence they were innocently obtained. Cato has filed an amicus brief in the Fourth Circuit arguing that the government is overstepping the defendants’ rights [Ilya Shapiro]
Litigation roundup
- House passes Stop Settlement Slush Funds Act of 2016 [James DeLong, Rep. Bob Goodlatte, Republican Policy Committee, earlier]
- “Enough is enough”: judge in surgical-mesh case decries tactical angling in multidistrict litigation (MDL) process, reminds lawyers of sanctions authority [Glenn Lammi, Washington Legal Foundation] Related: “Repeat Players in Multidistrict Litigation” [Elizabeth Chamblee Burch, Mass Tort Prof]
- E-mail scanning: “So-called ‘privacy lawsuits’ that essentially enrich a cottage industry of plaintiffs’ lawyers…” [David Kravets, ArsTechnica]
- GM, 3-for-3 at winning ignition-switch trials, settles a couple of bellwether cases [Margaret Cronin Fisk and Laurel Brubaker Calkins, AP/Walla Walla, Wash. Union-Bulletin, CarScoops]
- New Jersey judge disallows plaintiff’s experts’ “made for litigation” methods in talcum powder case [Michele Barnes and Clifton Hutchinson, K&L Gates]
- “Lawyers Suing Lawyers: Texas mass tort attorney sues other mass tort attorney over robocall recruitment tactic” [U.S. Chamber Institute for Legal Reform]
“He was sent on to a case manager in the Gender-Based Misconduct Office…”
…where he was at length told, “Even if I were to agree with you, you know I can’t say anything.” [Ann Althouse] Relatedly, “The Sex Bureaucracy” is the title of the widely noted new article by Jacob Gersen and Jeannie Suk in California Law Review (via Hans Bader):
…we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated domain comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself.
And: “Judge reinstates Brown Univ. student accused of sexual misconduct, blasts ‘organized’ pressure to get him not to” [Fred Barbash, Washington Post]
Prosecutors: N.J. lawyer used extortion to develop practice
“The New Jersey Supreme Court has disbarred a lawyer who is currently serving a 27-month stretch in prison for trying to scare real estate investors into hiring him with a bogus claim of a pending criminal tax investigation…. The indictment accused [former Metuchen solo practitioner Thomas] Frey of extorting money from real estate investors by fabricating a story about impending criminal charges against them.” [New Jersey Law Journal]
Wage and hour roundup
- “Study: Minimum Wage Cost Germany 60,000 Jobs” [Axel Schrinner, Handelsblatt]
- Even they can’t comply: federal Department of Labor settles overtime claims with its own employees [J. William Manuel, Bradley Arant]
- “50 Business Groups Sue Feds Over Upcoming Overtime Rule” [Connor Wolf, Inside Sources, related, Daniel Fisher on suit by 21 states] “With all these efforts to block it, can employers relax?” [Robin Shea]
- Translation: it’s time to throw many more disabled persons into involuntary unemployment [proposal to end sub-minimum wage exemption in disabled work centers, earlier here and here]
- Dems’ $15-and-index platform plank would set a “policy written for the nation’s very wealthiest enclaves, but incoherent for economically distressed regions.” [IBD]
- Efforts to measure early impacts of Seattle minimum wage hike [Charles Hughes/Cato, Tim Worstall, Sean Higgins/Washington Examiner]
Why most American businesses pay their vendors, even without loser-pays
As has often been noted, the so-called American Rule on fees in litigation (prevailing party has no right to recover fees from loser) creates an incentive for businesses to refuse to pay the full sums they owe suppliers, since it would appear rational for a vendor to accept, say, 70 cents on the dollar rather than embark on the substantial cost of litigating over nonpayment. And yet deliberate vendor-stiffing (“selling out your good will”) remains uncommon in our system, rather than being the rule. Roger Parloff at Fortune, drawing on the work of the late contracts scholar Arthur Leff, explains why.
“DEA mines Americans’ travel records to seize millions”
“Federal drug agents regularly mine Americans’ travel information to profile people who might be ferrying money for narcotics traffickers — though they almost never use what they learn to make arrests or build criminal cases. Instead, that targeting has helped the Drug Enforcement Administration seize a small fortune in cash.” [Brad Heath, USA Today/KUSA]
Supreme Court roundup
- Randy Barnett and Josh Blackman: yes, the confirmation process had gone wrong, but not necessarily in the way we’re told [National Affairs] A case against judicial restraint [Ilya Shapiro, same, related Cato]
- “Business and the Roberts Court without Scalia” [Jonathan Adler, related on supposed “pro-business” Court]
- SCOTUS should (again) step in to reject Obama end-run around advice/consent on appointment power [Ilya Shapiro and Thomas Berry, Cato]
- The disappointeds docket: ten cert petitions last term the Court should have granted [Mark Chenoweth, WLF] WLF’s term preview with Jay Stephens, Neal Katyal, and Daryl Joseffer;
- “Tiers” of constitutional scrutiny, without tears [Mike Rappaport, Liberty and Law]
- Prominent lawprof Mark Tushnet says with majority looming, liberals should drop their “defensive crouch constitutionalism” [Balkinization, responses at PrawfsBlawg by Paul Horwitz and Rick Garnett]