- Interesting admission by Canadian unionist: right-to-work laws in U.S. states “are bleeding jobs out of Canada.” [Adrian Morrow, Globe and Mail, reporting that Canadian NAFTA negotiators are seeking to persuade their American counterparts to enact a federal ban on such state laws]
- And another try: unions challenge right to work laws in court as a “taking” of their property [Lyle Denniston, Constitution Center, earlier]
- “D.C. Circuit Calls Out NLRB in Ruling on Union Access to Employer Property” [Minal Khan, Barnes & Thornburg, John Doran, Sherman & Howard (“epic benchslap”), on Janice Rogers Brown opinion in Fred Meyer Stores v. NLRB]
- Study confirms that “unionization is negatively related to job satisfaction.” Selection effect, causal effect, both? [Patrice Laroche, Harvard Business Review]
- Encylopedia of Libertarianism, published in 2008 and now free online from Cato, has an article on labor unions by Charles Baird;
- First Circuit upholds 2011 NLRB flip-flop: union in successor employer situation entitled to “reasonable period” of not having its representation challenged no matter what employees may wish [NLRB v. Lily Transportation]
Archive for September, 2017
Saying it with frosting at SCOTUS
My Cato Institute colleagues (Sept. 6) and the U.S. Department of Justice (Sept. 7) have both weighed in with amicus briefs in the Supreme Court’s fall-term case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, supporting the principle that the First Amendment does not permit Colorado public accommodations law to force independent baker Jack Phillips to create a cake intended for a same-sex wedding in which he does not wish to participate.
Cato’s brief emphasizes the expressive significance of custom cake baking, which involves the creation of a unique work of art with symbolic and emotional elements (more from Ilya Shapiro and David McDonald).
The Department of Justice brief advances a similar argument and also argues that creative expression aside, the law must not force “participation in an expressive event” under First Amendment precedents such as Barnette v. West Virginia Board of Education (public school students may not be compelled to take part in Pledge of Allegiance, flag salutes, or similar ceremonies), absent a more compelling state interest than Colorado has shown here.
Both briefs distinguish custom cake making from other wedding services. Cato notes that some services (wedding photography, custom floral design) share elements of creative expression with custom cake baking, while many other services do not. DoJ says there is no First Amendment problem applying public accommodation law to hall or limo rental or to the sale of off-the-shelf cakes. Where a product is not custom made for a particular client or event, the law is dealing with a sale of goods, not conscripting an expressive service.
Neither Cato’s nor DoJ’s brief is grounded in a free exercise of religion argument, but would apply to refusals to deal whether grounded in religious belief or not. Earlier here and here. More: Erica Goldberg.
Regulating “fake news”
Legally penalizing the circulation of “fake news,” misinformation and faulty rumor, newly popular in Europe especially as regards social media, is not a new idea at all. It’s a very old one, which again and again results in governments’ enshrining their particular version of orthodoxy as truth [Jacob Mchangama, Quillette]
Liability for abetting workplace bias
“Like the non-discrimination laws in a number of other states, including California, New Jersey, and Illinois, New York State’s Human Rights Law (‘NYSHRL’) contains a provision extending liability to those who aid and abet discrimination or retaliation.” The kicker is that New York’s law can impose extraterritorial liability on actors outside the state — such as a national moving and relocation firm that required by contract that its local contractor exclude from employment persons with certain categories of criminal convictions, and is now facing ban-the-box-related liability over that to New York plaintiffs that it did not itself employ. [Jodi Frankel, DLA Piper Labor Dish]
Lawyers work on hurricane-suit theories
While suits seeking to blame climate events on carbon sources and emitters have gone nowhere in the past, some lawyers claim “scientific advances are making it possible to precisely measure what portion of a disaster such as Harvey can be attributed to the planet’s changing climate.” Another set of targets: “government agencies, companies managing infrastructure or architects and engineers who have been involved in building damaged infrastructure, from sewage-treatment plants to levees,” and municipal planners. [Sebastien Malo, Reuters]
Yes, feds need to rethink campus sexual misconduct policies
A series of tweets I did about Thursday’s major announcement on Title IX policy from Secretary of Education Betsy DeVos:
With @BetsyDeVosED today unveiling plans to revamp Obama rules on sexual assault and college discipline, here's a long tweetstorm… /1
— Walter Olson (@walterolson) September 8, 2017
…which I'll base on highlights from @EmilyYoffe's terrific article in @TheAtlantic, just out, on this subject https://t.co/kfIgIFFlzx /2
— Walter Olson (@walterolson) September 8, 2017
I went on to explain that it all starts with the Department of Education’s OCR (Office for Civil Rights) 2011 Dear Colleague letter, and the further guidance that followed, which I wrote up here.
Most famously it ordered colleges to adopt "preponderance of evidence" not "clear and convincing" in guilt-finding. But much more too… /5
— Walter Olson (@walterolson) September 8, 2017
Obama admin came to push “single investigator” model, whereby school names one person "to act as detective, prosecutor, judge, and jury." /7
— Walter Olson (@walterolson) September 8, 2017
Setting a tone, "many subsequent federal documents described complainants as victims or survivors, and the accused as perpetrators." /9
— Walter Olson (@walterolson) September 8, 2017
OCR put 100s of colleges on investigation list, and its field agents were seen as bent on scoring penalties, not neutral fact-finders /10
— Walter Olson (@walterolson) September 8, 2017
"Increasingly the momentum of their own bureaucracies" as well as feds, activists, fear of criticism push schools into extreme positions /12
— Walter Olson (@walterolson) September 8, 2017
Tipsy? Lacking in voiced consent? Conduct banned in some college codes “plausibly covers almost all sex students are having today.” /13
— Walter Olson (@walterolson) September 8, 2017
That’s a quote by Yoffe from a California Law Review article by Jacob Gersen and Jeannie Suk Gersen previously noted in this space here and here.
Interim measures may include steps to ensure that accuser never has to encounter accused, thus banishing from ordinary dorm life, clubs /15
— Walter Olson (@walterolson) September 8, 2017
Perhaps the most amazing single paragraph in Yoffe's piece, worth reading and mulling before you join any movement to #StopBetsy /17 pic.twitter.com/UeSNkFahcK
— Walter Olson (@walterolson) September 8, 2017
No wonder groups of lawprofs at Harvard and Penn have written open letters to say OCR "has undermined due process and justice." /18
— Walter Olson (@walterolson) September 8, 2017
The courageous Harvard Law professors who called for a rethink of the Obama-era policy — Janet Halley, Elizabeth Bartholet, Jeannie Suk Gersen and Nancy Gertner — were profiled in a recent issue of The Crimson and in earlier coverage in this space here and here.
Paradoxically, among activists and increasingly admins, view is "women who deny they were assaulted should not necessarily be believed." /20
— Walter Olson (@walterolson) September 8, 2017
At Yale, "more than 30 percent of all undergrad-assault allegations" were third-party reports where putative victim refused to cooperate /22
— Walter Olson (@walterolson) September 8, 2017
Though colleges have begun losing lawsuits to male students, their own Title IX bureaucracies press them to dig in to defend new methods /24
— Walter Olson (@walterolson) September 8, 2017
"They should also model for their students how an open society functions, & how nec'y it is to protect the civil liberties of everyone" /26
— Walter Olson (@walterolson) September 8, 2017
Whole @EmilyYoffe piece here, which (in case it wasn't obvious!) I recommend highly: https://t.co/kfIgIFFlzx /27, end #INeedTitleIX #INeedIX
— Walter Olson (@walterolson) September 8, 2017
More coverage of DeVos’s speech and initiative, in which she pledged to use appropriate notice-and-comment methods rather than Dear Colleague guidance to introduce changes (“The era of ‘rule by letter’ is over”): Christina Hoff Sommers/Chronicle of Higher Education, Benjamin Wermund/Politico, Jeannie Suk Gersen/New Yorker, KC Johnson and Stuart Taylor, Jr./WSJ and cases going against universities, Johnson/City Journal, Bret Stephens/NYT (“no campus administrator was going to risk his federal funds for the sake of holding dear the innocence of students accused of rape”), Foundation for Individual Rights in Education, Hans Bader/CEI, Scott Greenfield and more (no basis in law to begin with), Robby Soave/Reason and more.
Medical roundup
- Bill advancing in California legislature would authorize jail for nursing home staff who “willfully and repeatedly fail to use a resident’s preferred name or pronouns” [Eugene Volokh, SB 219]
- “The FDA cannot get out of its own way on the issue of off-label communications.” [Stephen McConnell, Drug and Device Law Blog first and second posts]
- Public health covets territory of other studies and disciplines, part CLXXII [British Medical Journal on American College of Physicians’ resolution declaring “hate crimes” and “legislation with discriminatory intent” to be public health issues]
- Podcast on battle between Vascular Solutions and the FDA [Federalist Society with Howard Root and Devon Westhill]
- Policy U-turns needed: “Deregulation and Market Forces Can Lower Pharmaceutical Prices” [Marc Joffe, Reason]
- Florida Supreme Court ignored market history in striking down noneconomic damages limits in medical malpractice awards [Robert E. White, Jr., Insurance Journal and Andrew S. Bolin, WLF on North Broward Hospital District, et al v. Kalitan]
Update: federal court dismisses defamation suit against TechDirt
A federal court has dismissed a defamation suit against TechDirt, editor Mike Masnick and others filed by a Massachusetts businessman who says he invented email. [Cyrus Farivar and David Kravets, ArsTechnica, Mike Masnick/TechDirt, Ayyadurai v. Floor 64 et al.] A diverse ideological coalition had formed to defend the publication [David McCabe, Axios] That coalition’s work is not over since Charles Harder, Shiva Ayyadurai’s lawyer, says his client will appeal. Earlier here and here.
Our plea bargain system
In which innocence can be irrelevant: the defendant “wept with joy. Then she stood before the judge and pleaded guilty to a crime she says she did not commit.” [Emily Yoffe, The Atlantic]
Publishing a gun design online = arms export?
Design for using 3-D printing technology to produce a gun is posted on the internet. Feds order it taken down as a violation of arms export laws, because anything posted online can be read overseas and a data file counts as an “export.” Is there a constitutional problem with that? Trevor Burrus and Meggan DeWitt on a new Cato amicus brief. Update January 2018: Supreme Court denies writ of certiorari.