- “Before you fire that political extremist…” [Robin Shea, Eric B. Meyer, Philip Miles, Eugene Volokh, Tammy Binford/HRHero]
- Municipal worker with brain injury could not perform “the essential functions of his job,” per a neurologist’s letter, jury award plus backpay calculation totals $354,070 [Robin Shea on Stragapede v. City of Evanston, Seventh Circuit]
- “Trump suspends burdensome Obama EEO-1 form that cost $400 million” [Hans Bader]
- Court orders EEOC to revamp rules for employee wellness programs, under fire as ADA and GINA violation [Allen Smith/SHRM, Barbara Zabawa/WellnessLaw]
- A proposal from NYU’s Sam Estreicher: “‘Safe Harbor’ Rules for Cases of Chronic Hiring Aversion” [Journal of Law and Public Affairs, shorter version On Labor, also Sam Bagenstos response and Estreicher rejoinder]
- Nuclear Regulatory Commission regulations override ADA, so utility is allowed to dismiss nuclear plant employee displaying paranoid symptoms [McNelis v. Pennsylvania Power & Light, Third Circuit, via John Ross/Short Circuit]
Archive for September, 2017
Trial lawyers’ stake in Alabama Senate contest
As far back as 2004 Alabama’s powerful trial lawyers were supporting former state chief justice Roy Moore, twice removed from the bench for defiance of federal court rulings. So no surprise they’re backing his Senate aspirations this time around [WSJ editorial, Tiger Joyce, Washington Examiner]
September 20 roundup
- Relatively funny, clever, and pleasant nastygram, as nastygrams go, on Netflix “Stranger Things” pop-up [BGR]
- “Taser: Can’t say our weapons killed somebody unless the autopsy says so. Also Taser: If the autopsy blames our weapon, we might sue you.” [@bradheath on Jason Szep, Tim Reid, and Peter Eisler Reuters investigation]
- Fourth Circuit asked to overturn forfeiture of antiquarian coins seized under “cultural patrimony” law [Peter Tompa, Antique Coin Collectors Guild]
- Videos from April conference at Scalia/George Mason on due process and the administrative state: Neomi Rao, Philip Hamburger, Gary Lawson, Ronald Cass, Jonathan Adler, Hon. Doug Ginsburg, and many other stars;
- Nice try, censorship fans: study from Stanton Glantz et al. tries to link teen smoking to movie depictions of smoking, resulting in epic fail [Brad Rodu]
- Facebook weeds out a million accounts a day, some in error. Takedown laws will lift false positive rate [Mike Masnick]
John Baker on the AGs’ Exxon campaign
“Warning to Corporate Counsel: If State AGs Can Do This to ExxonMobil, How Safe Is Your Company?” Prof. John Baker in the Georgetown Journal of Law and Public Policy, excerpt:
Nation-states have long fought wars for control of oil. In a novel development, American states are now fighting a war over control of oil—not with one state attempting to take oil from another, but with some states attempting to deny its use to other states. In 2015, New York’s Attorney General, Eric Schneiderman, began an investigation of ExxonMobil. Then, at a news conference held in New York City on March 29, 2016, Schneiderman said that he and a group of other attorneys general were looking at “creative legal theories” to bring about “the beginning of the end of our addiction to fossil fuel.” The group is comprised of seventeen attorneys general, representing fifteen states, the District of Columbia, and one territory. Opposing these attorneys general from mostly “blue states” are attorneys general from twenty-seven mostly “red states.”
We’ve covered one angle of the investigation — its attempt to attach legal consequences to wrongful climate advocacy, and use subpoena power to investigate advocates — at length. Baker writes about many others, including the murky origins of the multi-state investigation and related professional responsibility questions, Exxon’s subdued public response, and the prospect of an ideological “War Between the States.”
States’ boycotts of states, cont’d
“California state university researchers are banned from using funds to travel to Texas to study Harvey’s aftermath.” — Joshua McCabe on Twitter. The guidelines from California Attorney General Xavier Becerra do cite the legislature’s allowance of a number of narrow exceptions including travel that is “required…for the protection of public health, welfare, or safety, as determined by the affected agency.” The cited project, however, might not make it past that tough standard, given that it is possible in principle to wait and study flood aftermaths in some other place that (unlike Texas) is not under legislated California sanctions.
All of which should remind us that boycotts of states by other states 1) operate like internal trade barriers; 2) do not do much for national unity. See earlier posts from April 2015 (would Constitution provide any remedy if states closed state university systems to residents of “bad” states?); April 2016 (logic of lifting sanctions against Cuba extends to sanctions against Texas and North Carolina).
On the bottom of an Emmy
You’ve won an Emmy! But now comes the fine print [Janina Gavankar on Twitter via @thrillscience]
Wanna see what the bottom of an Emmy says? pic.twitter.com/Wk2Pb1aDWk
— janina gavankar (@Janina) September 18, 2017
“The ABA has often fancied itself a bulwark of due process…”
Given the historic role it has frequently played as advocate of due process, it’s curious that the American Bar Association now is fine with ex parte gun confiscation orders [Trevor Burrus and Matthew Larosiere, Forbes]
Schools and childhood roundup
- Cafeteria nudge dud: questions raised on efficacy of USDA Smarter Lunchrooms Movement, launched in 2010 [Caitlin Dewey, Washington Post; Elizabeth Nolan Brown/Reason]
- “Florida Legislator Wants to Make It a Crime to Leave Your Kid in the Car for Just One Minute. But Why?” [Lenore Skenazy] “Dad Teaches Kids to Ride the Bus. But CPS Says He Can Never Leave Them Alone, Ever.” [same, Canada; more] “Court Upholds Dad’s Conviction for Making 8-Year-Old Son Walk Home Alone” [same, California]
- Judge: Arizona lawmakers not free to end Mexican-American studies program in schools if motivated by animus [Michael Kiefer, Arizona Republic]
- “Former Los Altos baseball player sues coach after being benched, claims bullying” [Hayley Munguia, San Gabriel Valley Tribune, Calif.]
- Oft-told story of residential schools as ruin of Native American life might admit of some complication [Naomi Schaefer Riley, Education and Culture, reviewing Dawn Peterson, Indians in the Family: Adoption and the Politics of Antebellum Expansion]
- New York initiative on suspensions likely to make schools less safe [Max Eden, New York Post] “Another Obama Policy Betsy DeVos Should Throw Out” [Jason E. Riley, WSJ]
Constitution Day at Cato
September 17 marks Constitution Day. One of the wonderful things about being at Cato is that my work encourages me to write about constitutional law regularly, which means constantly learning new things about the founding document by studying it and commentaries on it.
Over the past year I’ve written about the Emoluments Clause; the No Religious Tests clause; limits on presidential power as defined in the steel seizure case; the meaning of the oath of office; how the Appropriations Clause constrains lawsuit settlements involving the federal government; how and whether gerrymandering by race and for partisan advantage affects constitutional rights; judicial independence; the decline and fall of the Contracts Clause; the application of Obergefell to issues of public employees and birth certificates; Article V procedure for calling a new constitutional convention; and too many First, Second, Fourth, and Fifth Amendment controversies to list.
The U.S. Constitution is very much alive, not in the Living Constitution caricature of a document emptied of most durable or objective meaning, but in the sense that most persons in charge of all three major branches of the federal government and state and local government, whichever their party, continue to try to act by its guidance according to their lights, however unnerving and lamentable the occasional exceptions may be.
Today (Monday) you can tune in online to Cato’s annual Constitution Day symposium. I’ll be moderating the afternoon panel on property rights and religious liberty (the Murr and Trinity Lutheran cases, and no, it’s not clear that we need to find any actual connection between them).
In which I defend the national anthem
Not quite an Overlawyered topic, but: The crazies who defaced the Francis Scott Key statue in Baltimore the other day weren’t just lawless goons — they were wrong about the song too. I explain at National Review.
I might have added countless other examples of songs, poems, and nationalist rhetoric in which “slave” was employed 1) as an epithet, 2) to signify subjection to kingly or other un-republican authority, or 3) both, everywhere from Patrick Henry’s famous speech to Schiller’s Wilhelm Tell to Rule, Britannia! to La Marseillaise. Suffice it to say that the word’s occurrence in a poem — even one penned by a slaveholder — needs to be read in context to determine whether American chattel slavery was the intended reference, and in the case of the third verse of the national anthem, there are plenty of reasons to think it was not.