There’s hope for stopping some of the regulations that the Obama administration began dropping in its last months before heading out the door, including the arguably worst of all, overtime for mid-level workers, now blocked by a federal judge in Texas [Kathy Hoekstra/Watchdog, McClatchy, Brittany Hunter/FEE; Virginia Postrel (“Not every workplace is, or aspires to be, the civil service. Not every worker longs to be on an assembly line.”)]
Archive for December, 2016
Police and prosecution roundup
- “Policing in America: Understanding Public Attitudes Toward the Police. Results from a National Survey” [Emily Ekins, Cato]
- “In ‘blistering’ ruling, court upholds recusal of entire Orange County DA’s office from murder case” [ABA Journal] Orange County scandals played role: “Prosecutorial Misconduct is Now a Felony in California” [Reason]
- “Mistrial for Cop Who Shot Walter Scott in the Back” [Cato podcast with Matthew Feeney and Caleb Brown]
- House Moves To Stop IRS Forfeiture Abuse [Jared Meyer] “California Enacts Asset Forfeiture Reform, Mostly Closing Lucrative Fed Loophole” [C.J. Ciaramella, Reason] “Iowa Will Pay Poker Players Robbed by Forfeiture-Hungry State Cops” [Jacob Sullum]
- Time for the great U.K. child abuse witch hunt to close up shop [Charles Moore, Telegraph]
- “Reining in Prosecutorial Overreach with Meaningful Mens Rea Requirements” [Trevor Burrus on Cato amicus in 11th Circuit case of U.S. v. Clay]
Eugene Volokh vs. Deborah Rhode on hostile environment and ABA 8.4(g)
At last month’s Federalist Society National Lawyers Convention, Eugene Volokh debated Deborah Rhode on whether hostile environment law on and off campus often violates the First Amendment. The discussion also got onto Model Rule 8.4 (g), adopted by the American Bar Association a few months ago, which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “conduct,” that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Can bar disciplinary committees be trusted not to apply this language to politically incorrect expression by lawyers, including in pedagogical settings such as law school and continuing legal education (CLE)? [Josh Blackman, Francis Pileggi]
Related: ABA president Linda Klein says hate speech “cannot be tolerated.” [Scott Greenfield] And a Eugene Volokh podcast for the Federalist Society on 8.4.
Parents sue school counselor over student suicide
In Loudoun County, Virginia, the parents of Jay Gallagher are suing school counselor Richard Bader following the suicide of their 18-year-old son [Washington Post]:
The lawsuit accuses the school counselor of negligence and ignoring school guidelines that direct counselors to notify parents if their children express suicidal thoughts.
But Julia Judkins, Bader’s attorney, said the lawsuit does not tell the full story. Judkins said that the teen told Bader not to talk to his parents about their meeting and denied he was suicidal.
“They’ve left out the fact that this young man was 18 years old and he had the right to tell Mr. Bader, ‘Please don’t tell my parents,’” Judkins said.
December 7 roundup
- “Lawyer sues 20-year-old student who gave a bad Yelp review, loses badly” [Joe Mullin, ArsTechnica]
- Gown makers’ associational liberty not to sell to Trump family should also protect florist Barronelle Stutzman [Stephanie Slade/Reason; Eugene Volokh on legal treatment of private discrimination based on political belief or association]
- What to expect from Trump on legal policy: Harvard Law panel with Adrian Vermeule, Cass Sunstein, Andrew Crespo;
- More on new Jonathan Adler book on business and the Roberts Court [Bainbridge]
- Edelson class action firm, discussed here before, files vibrator data privacy suit [Chicago Tribune]
- “Legal Theory Lexicon: Libertarian Theories of Law” [Lawrence Solum]
60 Minutes on ADA Drive-By Lawsuits
On Sunday Anderson Cooper at CBS “60 Minutes” covered one of our favorite issues: the way lawyers and clients sue retail businesses by the dozens or hundreds over defects in ADA accessibility compliance and then cash in the complaints for quick settlements. Actually entering the business is not always necessary: it can be enough to drive around the parking lot spotting technical violations.
South Florida store owner Mike Zayed says “no disabled customer had ever complained about the ramp, the sign, or the parking space,” which failed to comply with ADA specs. Zayed “doesn’t think the person who sued him was a real customer because the man claimed he encountered barriers inside the store that didn’t exist.” And now we’re beginning to see “Google lawsuits” in which the complainant consults online aerial maps to discover, for example, which motel owners haven’t yet installed the pool lifts that federal law recently made obligatory. The same attorney using the same client sued more than 60 defendants in 60 days over lack of pool lifts. “At last count, that attorney has sued nearly 600 businesses in just the last two years, many for not having pool lifts.” [Dec. 4 segment and script; full show here (segment begins 32:47).
“The State of American Criminal Justice”
All-day Cato conference tomorrow (register or watch online) has a line-up that includes attorney Ken White, civil libertarian Harvey Silverglate, Judge Shira Scheindlin, and Families Against Mandatory Minimums vice president Kevin Ring, with Cato researchers moderating each panel.
Free speech roundup
- Tomorrow (Tues., Dec. 6) Cato Digital presents panel discussion “Free Speech in the Age of Trump” with Flemming Rose, Nick Gillespie, and Kat Murti [register or watch live online]
- Eventually, Supreme Court will have to consider a First Amendment challenge to cyberbullying laws [ABA Journal]
- Tactical use of libel suits cries out for remedy, but some remedies that are being proposed are hard to square with federalism [Sasha Moss, R Street]
- Bill pending in Congress to protect consumer reviews (Yelp, etc.) would allow special restrictions on speech “inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic” which could prove an ominous precedent [Eugene Volokh]
- Is there a prospect for sanctions should Donald Trump sue the press for defamation? [Eric Turkewitz, pre-election if that matters]
- Count the ways: “The government has double standards about freedom of speech” [Hans Bader]
Debating a constitutional convention this week
New York listeners: I’m scheduled to be a guest on Brian Lehrer’s popular WNYC radio show tomorrow (Monday) morning, probably 10:30 a.m. or so, debating famed Harvard Law professor Larry Lessig on the topic of a convention to propose amendments to the U.S. Constitution. (Lessig supports that idea, I’m skeptical). That’s a foretaste of the live Intelligence Squared debate that will follow on Wednesday, in which two other debaters will be joining us, Mark Meckler, president of Citizens for Self-Governance joining Lessig for the affirmative and Georgetown law professor David Super joining me for the negative.
“Justice Scalia’s Telecommunications Legacy”
Antonin Scalia’s work on telecommunications deregulation before he became a judge is not one of the more widely known parts of his career, but as director of a White House office on telecom policy in the 1970s he played a key role in promoting removal of old legal barriers to competition and innovation, which in turn laid the groundwork for the emergence of modern online data, voice, and entertainment delivery. This panel discussion at the Federalist Society Lawyers National Convention features Henry Goldberg, Richard Wiley, and Prof. Richard Epstein, with Texas Justice Don Willett moderating. At the very end of the Q&A period I ask a question from the audience, resulting in an exchange with Richard Epstein in which we reminisce about Scalia’s time as editor of Regulation magazine.