Following a series of safety incidents that included the mauling of a passenger last year by a 70-pound dog, Delta Air Lines has tightening its onboard policies on emotional support and other service animals, requiring additional documentation of their role and training and excluding some species altogether, including “‘farm poultry,’ hedgehogs and anything with tusks.” [Karin Brulliard, Washington Post/PennLive; earlier here, here, etc.] The carrier said there had been “a 150 percent increase in the number of service and support animals carried onboard since 2015.” [Alana Wise/Reuters] Employers are bracing for a rising number of demands to let employees bring service animals with them into the workplace, with the likes of the EEOC litigating in support [Patrick Dorrian, BNA/Bloomberg, earlier] And New York has joined a number of other states in passing a law against service animal fraud. [Kevin Fritz and John Egan, Seyfarth Shaw]
Archive for January, 2018
Administrative law roundup
- “”Administrative State Is THE Leading Threat to Civil Liberties of Our Era'”: Nick Gillespie interview with Philip Hamburger at Reason;
- Beyond the deference debates: White House Counsel Don McGahn speaks on Chenery I v. Chenery II, fair notice and retroactivity [Aaron Nielson, Yale Journal on Regulation “Notice and Comment”; related, Josh Blackman] Federalist Society convention videos includes panels on the administrative state and agencies and the judiciary with Steven Calabresi and Gillian Metzger, Congress with C. Boyden Gray and Keith Whittington, the executive branch with Susan Dudley and Neomi Rao, and recent regulatory rollbacks with John Allison and Philip Hamburger;
- Michael Rappoport writing at Law and Liberty lately on such topics as reconfiguring administrative law to promote deregulation, a reformed REINS Act, insisting on stricter separation of powers within agencies including adjudication, and deference doctrines including Chevron (contra preferentum? No thanks), Auer (shares Chevron’s faults) and Skidmore (demonstrations of agency expertise). And Michael Greve on some historical and comparative-law perspectives;
- CSAS (George Mason/Scalia Law) December conference on judicial review of agency action with papers by Jerry Ellig and Reeve Bull, Kristin Hickman and Mark Thomson, Aaron Nielson, Nicholas Parrillo, and Jeffrey Pojanowski, full conference and video links with Andrew Grossman, Adam White, and many others;
- Manipulable: recent Section 8 housing case points up “how easily courts can side-step Auer deference if they have a mind to do so” [Rick Hills, PrawfsBlawg]
- Digital Realty v. Somers, on SEC definition of Dodd-Frank whistleblower, could give Justice Gorsuch an opening to strike blow against excessive judicial deference to agencies [Ilya Shapiro]
January 24 roundup
- Bryan Caplan and Arthur Brooks on international adoption, the Hague Convention, and Type I and Type II error [Caplan/EconLog, Brooks/NYT]
- It’s about the pecking order: enrolling a 3-month-old chicken in a “distinguished lawyer” marketing program [Conrad Saam]
- West Baltimore police checkpoints, Montgomery County rent control proposals, taxes, regulations, gerrymandering and more in my latest Maryland policy roundup [Free State Notes]
- Also from me: with Oprah Winfrey in the news, I recall the time I was on her talk show [Frederick News-Post]
- Yet more from me: as part of a Reason symposium on Trump’s first year, his administration’s centrist course on gay issues;
- More work for age discrimination lawyers? “The New York Times is looking for young writers” for paid positions according to its ad [archived original, and updated current page with legally safer wording, via @jackshafer]
- “Copyright Troll Gets Smacked Around By Court, As Judge Wonders If Some Of Its Experts Even Exist” [Tim Geigner, TechDirt]
NYC police union may cut back courtesy cards
Patrick Lynch, boss of New York’s Patrolmen’s Benevolent Association (PBA), is reportedly slashing “the number of ‘get out of jail free’ courtesy cards distributed to cops to give to family and friends… to current cops from 30 to 20, and to retirees from 20 to 10, sources told The Post. The cards are often used to wiggle out of minor trouble such as speeding tickets, the theory being that presenting one suggests you know someone in the NYPD.” [Dean Balsamini, New York Post; also the topic of a discussion in our comments section]
Perfect New York touch: the anonymous griping in the Post comes from sources who complain that things aren’t corrupt enough in that cards aren’t being distributed as freely as before. The courtesy cards are sold on eBay for prices that can range up to $200, but awareness of their commercial availability is said to be one reason “plastic [lowest-level] cards are being honored less and less by officers.”
Alex Tabarrok quotes one source on “gold” (family member) and “silver” (most favored civilian) card levels, and another with extensive reflections on the workings of “professional courtesy,” which can include retaliation against officers who incautiously “write over the card” by ticketing someone with police connections.
Commentary from my colleague Julian Sanchez:
Think about the message these cards send to every officer who’s expected to honor them. They say that the law—or at least, some ill-defined subset of it—isn’t a body of rules binding on all of us, but something we impose on others—on the people outside our circle of personal affection. They say that in every interaction with citizens, you must pay special attention to whether they are members of the special class of people who can flout laws, or ordinary peons who deserve no such courtesy. They say that, at least within limits, officers of the law should expect to be able to break the law and not be punished for it. They say that a cop who has the temerity to hold another officer or their family to the same standards as everyone else is a kind of traitor who should expect to suffer dire consequences for the sin of failing to respect that privileged status. Moreover, they say that this is not merely some unspoken understanding—a small deviation from impartial justice to be quietly tolerated—but a formalized policy with the explicit support of police leadership.
Can we really be surprised, when a practice like this is open and normalized, that the culture it both reveals and reinforces has consequences beyond a few foregone speeding tickets? Should we wonder that police fail to hold their own accountable for serious misconduct when they’re under what amounts to explicit instructions to make exceptions for smaller infractions on a daily basis?
And Ed Krayewski:
The cards cut to the heart of the problem with public-sector unions: They create an environment where government employees who are supposed to ‘serve and protect’ the public instead get extra privileges. This is particularly dangerous with police unions, whose membership is armed by the state to enforce laws. Such unions regularly push for rules that protect bad cops.
Best of Overlawyered — October 2017
- Prop 65: “Coffee sold in California could carry cancer warning labels”;
- “The Dead Man Who Sued to Make Himself Alive”;
- “Third Circuit OKs ADA suit demanding tactile interpreter for deaf/blind movie patron”;
- Mom’s “3-year-old for sale, $12” joke prompts human trafficking investigation;
- “Florida law firm sanctioned; many clients had not authorized it to sue“;
- DoJ subpoenas Twitter accounts that were tweeted at;
- Florida first-grader disciplined for bringing butter knife to school;
- “Woman caught stealing cement pavers threatens to sue for back injury”
South Dakota v. Wayfair: can states collect sales tax from out-of-state merchants?
David Post at Volokh Conspiracy has written an explanation and defense of the Supreme Court’s holding, in 1992’s Quill v. North Dakota, “that a State may not require out-of-state sellers of goods or services to collect that State’s sales/use tax, unless the out-of-state seller has some ‘physical presence’ in the State – a retail outlet, warehouse, office, or the like” This term’s case of South Dakota v. Wayfair invites the Court to retreat from that holding. The Quill rule is often criticized for privileging online commerce unfairly over brick-and-mortar, but the contrary rule, says Post, would tend to do the reverse by sinking small online retailers under impossible regulatory burdens. A foretaste of those burdens:
South Dakota’s law, however, does not merely require her [an Idaho woman with a web storefront selling crafted iPhone cases] to collect South Dakota’s sales tax; it subjects her to the full range of South Dakota’s tax and regulatory jurisdiction, including the panoply of South Dakota’s licensing, recordkeeping, and registration requirements, and would, among other things, make her subject to periodic audit by the South Dakota Department of Revenue – which, in many States, requires an in-person appearance before the Revenue Board.
And of course if the Court discards the Quill rule and upholds South Dakota’s law, we can expect other jurisdictions to follow suit.
There are more than 6,000 taxing jurisdictions. Post argues that congressional action is needed, rather than a free-for-all of local taxing power.
Crime and punishment roundup
- Fiasco of Cliven Bundy prosecution points up that even those who break the law are entitled to a fair trial. “In the Bundy case, Judge Navarro slammed the FBI for withholding key evidence. Unfortunately, this seems to be standard procedure for the FBI.” [James Bovard, USA Today; Mark Joseph Stern, Slate; earlier]
- Don’t undermine structural protection Double Jeopardy Clause provides against prosecutorial overreach [Jay Schweikert on Cato amicus brief in Currier v. Virginia] Case gives SCOTUS chance to reconsider “dual sovereignty” exception to Double Jeopardy Clause [Ilya Shapiro on Cato certiorari brief in Gamble v. U.S.]
- “The room he was in happened to fall within 572 feet of a park and 872 feet of a school,” within the 1000 feet set by Tennessee law, result misery [C.J. Ciaramella and Lauren Krisai, Reason (“Drug-free school zone laws are rarely if ever used to prosecute sales of drugs to minors. Such cases are largely a figment of our popular imagination.”)]
- Missed last spring: this challenge to the “Standard Story” of mass incarceration [Adam Gopnik on John Pfaff’s “Locked In”]
- Ignorance of the law is no excuse. But with law having proliferated beyond anyone’s grasp, perhaps it should be? [Stephen Carter, Bloomberg, earlier]
- Another study finds decriminalizing prostitution reduces sexual abuse and rape [Alex Tabarrok]
Brad Smith: looking back at the IRS targeting scandal
Brad Smith, a former commissioner of the Federal Elections Commission, in the Washington Examiner:
…what we are now seeing is an outright attempt to rewrite history so as to whitewash the entire affair. Newsweek has gone so far as to call the scandal “fake news,” with one of its columnists calling it “a lie.” A Dec. 29 editorial by the Washington Post claims that there was “mismanagement … but not deliberate targeting.”…
The IRS itself eventually conceded that of 199 cases analyzed under this “Be On the Look Out,” or “BOLO” program, approximately 75 percent [150] “appear to be conservative leaning, while fewer than 10 appear to be liberal/progressive leaning groups.” In other words, the fact that the terms the IRS used to pull applications for extra scrutiny — terms such as “Tea Party” and “patriot” — snagged a few liberal groups doesn’t mean that the purpose and effect was not to target conservative organizations.
As the basis for whitewashing the IRS scandal, Newsweek, the Washington Post, and others have turned to a new TIGTA report concerning a different IRS program altogether. That program, called “Touch and Go,” swept up a mix of conservative and progressive groups. But that is precisely because it didn’t target groups based on politics, which was the problem with BOLO. Nothing in the latest TIGTA report contradicts TIGTA’s 2013 report revealing the IRS targeting, and TIGTA doesn’t claim that it does.
“State police must rehire trooper who isn’t allowed to carry a gun”
“The Pennsylvania State Police must reinstate a trooper who is barred from having a gun because a female officer secured a protection from abuse order against him, a state appeals court has ruled.” One judge dissented, “arguing that Acord’s firing was justified since, without a gun, ‘he cannot perform the basic and essential duties for which he was hired as a trooper.'” [Matt Miller, PennLive]
In the mail: “The Tyranny of Metrics”
New from Princeton University Press and Catholic U. historian Jerry Z. Muller:
Today, organizations of all kinds are ruled by the belief that the path to success is quantifying human performance, publicizing the results, and dividing up the rewards based on the numbers. But in our zeal to instill the evaluation process with scientific rigor, we’ve gone from measuring performance to fixating on measuring itself. The result is a tyranny of metrics that threatens the quality of our lives and most important institutions. In this timely and powerful book, Jerry Muller uncovers the damage our obsession with metrics is causing–and shows how we can begin to fix the problem.
Filled with examples from education, medicine, business and finance, government, the police and military, and philanthropy and foreign aid, this brief and accessible book explains why the seemingly irresistible pressure to quantify performance distorts and distracts, whether by encouraging “gaming the stats” or “teaching to the test.” That’s because what can and does get measured is not always worth measuring, may not be what we really want to know, and may draw effort away from the things we care about. Along the way, we learn why paying for measured performance doesn’t work, why surgical scorecards may increase deaths, and much more. But metrics can be good when used as a complement to—rather than a replacement for—judgment based on personal experience, and Muller also gives examples of when metrics have been beneficial.
Also with an epigraph from Aaron Haspel: “Those who believe that what you cannot quantify does not exist also believe that what you can quantify, does.”