Marty, a robot, patrols the aisles in a Giant food store in Pennsylvania, part of a test program of a technology developed by a Kentucky company. “The robot is equipped with scanners so he doesn’t bump into displays or shoppers. He also has several internal cameras that reach about three fourths of the way down aisles,” a manager for Ahold USA said. “The robot’s main job right now is to scan for trip or slip hazards on the floor,” which can reduce liability payouts not only by aiding rapid cleanup of spills, but also by documenting that the site of a spill had not been the scene of a slip hazard for very long, reducing the chance of a finding of liability. [Sue Gleiter, PennLive via TortsProf/Robinette]
Archive for November, 2017
Publisher: we’re canceling book on influence of Chinese government in Australia
Allen & Unwin, the publisher, says it does not plan to publish a book by Charles Sturt University academic Clive Hamilton called Silent Invasion, on the influence of the Chinese government in high places in Australia. Hamilton says the publisher has privately communicated to him that it is afraid of facing defamation lawsuits should it go forward. [Andrew Greene, Australian Broadcasting Corporation]
When pizza incentives (allegedly) backfire
A class-action suit charges that the sheriff and public defender’s office in Cook County, Ill. have failed to protect female public defenders and law clerks from detainees who expose themselves and harass the women in other ways. According to the suit’s allegations, the authorities tried bribing serial offenders with free pizza if they refrained from misbehaving but the policy “backfired, allegedly, because some detainees who learned of it would then start acting out just so they could get pizza when they stopped.” [Kevin Underhill, Lowering the Bar] “A spokeswoman for the Cook County Sheriff’s Office said the pizza rewards program described in the lawsuit never took place.” [ABC News]
Thanksgiving: a Day of Indigenous Mourning for American land?
Yesterday’s Thanksgiving celebration was accompanied by a fair bit of commentary about how the November holiday is a “day of indigenous mourning,” a symbol of the theft of the United States from its pre-Columbian population. Yet as I wrote in 2011 in the Schools for Misrule chapter on Indian land claims, the historical premise that Indian land in the U.S. was by and large stolen by the white man is false:
In 2005 a young UCLA law professor, Stuart Banner, published How the Indians Lost Their Land, an extensively researched work that does much to correct the portrayal of white-Indian relations as a mere catalog of thefts, conquests, and usurpations. As Banner demonstrates, the actions and attitudes of white Americans and their institutions have shown a full range of shadow and light, from extreme wickedness and ignorance to as much grace, goodwill, and foresight as could have been expected under the circumstances. Tracing the many twists and reverses of federal Indian policy, Banner notes that it was usually anything but obvious which proposed measures would truly serve the interests of aboriginal inhabitants, that nearly all major changes in policy enjoyed support among some Indians and Indian-friendly white reformers, and that most of the major disasters to afflict America’s Indian population were either unforeseen or not well controllable by the central government.
I also quote the leading 20th Century scholar of Indian law, Felix S. Cohen, architect of the “Indian New Deal” and one of the most progressive law professors and FDR appointees of his era:
Fortunately for the security of American real estate titles, the business of securing cessions of Indian titles has been, on the whole, conscientiously pursued by the Federal Government, as long as there has been a Federal Government. The notion that America was stolen from the Indians is one of the myths by which we Americans are prone to hide our real virtues and make our idealism look as hard-boiled as possible. We are probably the one great nation in the world that has consistently sought to deal with an aboriginal population on fair and equitable terms. We have not always succeeded in this effort but our deviations have not been typical.
It is, in fact, difficult to understand the decisions on Indian title or to appreciate their scope and their limitations if one views the history of American land settlement as a history of wholesale robbery.
More in this short 2012 Cato post and the Richard Reinsch essay to which it links.
The not-so-rapid implosion of the Contracts Clause
In conventional legal histories of the New Deal-era Supreme Court, the 1934 case of Home Building Association v. Blaisdell symbolizes the overthrow of the courts’ willingness to enforce the Constitution’s language providing that “No State shall…pass any…Law impairing the Obligation of Contracts.” The Court by a 5-4 margin upheld as lawful a Minnesota law enforcing a moratorium on many mortgage obligations. But in fact, argues David Forte at the Federalist Society Review, the decline and fall of the Clause was more complicated. Blaisdell or no, the Court for years continued to strike down many state laws that impaired contracts, and the justices of the Court’s liberal wing sometimes joined, as in Worthen v. Thomas, a unanimous case disallowing Arkansas’s impairment of certain contract rights. It was not until 1945 that Justice Felix Frankfurter retrospectively contrived to interpret Blaisdell as a sweeping repudiation of the older Constitutional order, ushering in the modern era in which few state laws are struck down. It was effectively an act of will by the then Court — and one that could be reversed should there develop will to the contrary.
November 22 roundup
- Steven Wise and his Nonhuman Rights Project are back with another animal rights suit, this time claiming to represent elephants against small Connecticut zoo [Ted Folkman, Wesley Smith]
- Thomas Hemphill reviews Philip Hamburger mini-volume The Administrative Threat, which summarizes arguments from Hamburger’s magnum opus Is Administrative Law Unlawful? [Cato Regulation mag]
- Dialing for dollars: plaintiff who’s filed 80 lawsuits can proceed under Telephone Consumer Protection Act even if he purposely placed himself in harm’s way [John O’Brien, Chamber-backed Legal NewsLine/Forbes] Plus: Nov. 27 update;
- Occupational licensure, college free speech, Roy Moore’s Anne Arundel council chum, and more in my latest Maryland policy roundup [Free State Notes]
- New Cato Institute podcast series Cato Out Loud consists of print publications in audio format, give it a try;
- Remember the panic over tax inversions? “Anti-Inversion Regulation Invalidated in Federal Court” [Elizabeth Chorvat, Tax Notes]
Law of the Nursery
‘It’s my toy’ – property law
‘You promised me’ – contract law
‘He hit me first’ – criminal law
‘Daddy said I could’ – constitutional law
— the late Harold Berman of Harvard Law School, via John McGinnis, Law and Liberty.
Some others, via social media:
‘Mama said NO’- Supreme Court decision — Cathy Maddox on Twitter
‘Last week you said’ – case law — Dave Ferguson on Twitter
‘Stop repeating everything I say’ – copyright law — John Althouse Cohen
‘Make him turn it down’ — nuisance law
ADA and the workplace roundup
- “Can Fido Come to Work? EEOC Files Suit to Require Emotional Support Dog on Truck Route” [James M. Paul, Ogletree Deakins] “Someone brought a $@&@?! therapy duck into Iowa Law School.” [Prof. @andygrewal, with picture]
- EEOC sues Dollar General, alleges medical exams and questions violate ADA, GINA [Courtney Bru, McAfee & Taft]
- “My only surprise is that these kind of [ADA vs. NFL] suits don’t happen more often.” [William Goren, Understanding the ADA on Erin Henderson v. New York Jets LLC]
- When Addressing a Workers’ Comp Claim, Don’t Forget FMLA (and ADA)… [Janette Frisch on Zuber v. Boscov’s, Third Circuit]
- “Lucky Employer Skates on ADA Liability: Complaints about Noisy Workplace Not Enough to Put Employer on Notice of Need for ADA Accommodation” [Marti Cardi and Gail Cohen,
Matrix Radar] - “The ADA: Four issues to watch in 2018” [Robin Shea, Constangy]
Cato survey: “The State of Free Speech and Tolerance in America”
I’m a bit late getting to this major survey from my colleague Emily Ekins and associates. Some highlights good and bad:
* By 71% to 28%, Americans lean toward the view that political correctness silences discussions society ought to have, rather than the view that it is a constructive way to reduce the giving of offense;
* Liberals are much more likely than conservatives to say that they feel comfortable saying things they believe without fear that others will take offense.
* By a 4-to-1 margin Americans consider hate speech morally unacceptable, while by (only) a 3-to-2 margin they do not want the government to ban it.
* “47% of Republicans favor bans on building new mosques,” notwithstanding the First Amendment’s protection of free exercise of religion.
* “51% of Democrats support a law that requires Americans use transgender people’s preferred gender pronouns,” also notwithstanding the First Amendment.
* Upwards of 80% of liberals deem it “hateful or offensive” to state that illegal immigrants should be deported or that women should not serve in military combat, with 36% and 47% of conservatives agreeing respectively. “39% of conservatives believe it’s hate speech to say the police are racist, only 17% of liberals agree.”
And much more: on college speaker invitations, microaggressions, whether executives should be fired over controversial views, media bias, forced cake-baking, and the ease of being friends across partisan lines, among many other topics.
Liability roundup
- Hoping to blame Pacific Gas & Electric power lines for Northern California fires, lawyers from coast to coast descend on wine country [Paul Payne, Santa Rosa Press-Democrat]
- Courts should police lawyers’ handling of class actions, including temptation to sweep additional members with doubtful claims into class so as to boost fees [Ilya Shapiro, Trevor Burrus, and Reilly Stephens on Cato certiorari amicus in case of Yang v. Wortman]
- “Seventh Circuit Curtails RICO Application to Third-Party Payor Off-Label Suits” [Stephen McConnell, D&DL] “Here Is Why The False Claims Act Is An ‘Awkward Vehicle’ In Pharma Cases” [Steven Boranian]
- Litigation finance moves into car crash business [Denise Johnson, Insurance Journal]
- Slain NYC sanitation worker’s “frequent advice to Sanitation colleagues about how to save for the future helped persuade the jury that Frosch had a viable career ahead of him in financial planning,” contributing large future earnings component to $41 million award [Stephen Rex Brown, New York Daily News]
- “Ninth Circuit Overturns State Licensing Scheme Forcing Businesses to Incorporate in California” [Cory Andrews, WLF]