February 21 roundup

  • Minimum 18 age for marriage, stadium subsidies, bill requiring landlords to distribute voter registration material, dollar-home programs, and more in my latest Maryland policy roundup [Free State Notes; earlier on NJ first-in-nation ban on under-18 marriage]
  • Now shuttered by California regulation: startup that allowed home cooks to sell meals directly to neighbors [Baylen Linnekin]
  • Guess who’s hosting a program of his own on Russia’s RT network? Tub-thumping plaintiff’s lawyer, sometime RFK Jr. pal and longtime Overlawyered favorite Michael Papantonio;
  • “Should the governments give LGBT-owned businesses a leg up in public contracts?” (Answer: no. Set-asides and preferences are unfair in themselves and deprive taxpayers and those served of the best price/value proposition.) [Bobby Allyn, NPR Marketplace]
  • “Network effects” bogeyman gets deployed to bolster many an antitrust nostrum [David S. Evans and Richard Schmalensee, Cato “Regulation”] “The Future of Antitrust” Federalist Society video with Ronald Cass, Daniel Crane, Judge Douglas Ginsburg, Jonathan Kanter, Barry Lynn, moderated by Judge Brett Kavanaugh;
  • Arguments fated to lose: “After 4th DWI, man argues legal limit discriminates against alcoholics” [Chuck Lindell, Austin American-Statesman]


  • “Set-asides and preferences are unfair in themselves and deprive taxpayers and those served of the best price/value proposition.”

    Think of it as one more tax to support a favored group. That’s how CJ Roberts would. Unless it didn’t come from the House. In which case, he would rule it’s definitely not a tax.

  • Yesterday’s Supreme Court per curiam opinion deserves some ink. Enforce pension contracts as written–what a shock.

    Only shocking thing–a Bush 43 appointee authored the Court of Appeals opinion (joined by an Obama appointee) with a Bush 43 appointee dissenting.

    • Not sure what opinion that would be. If it’s Osberg v. Foot Locker, Inc., the 2nd Circuit panel opinion was unanimous (Lynch, Winter, Cabranes) and the issues include adequacy of disclosure under ERISA, whether detrimental reliance is a precondition to an ERISA claim, and the scope of equitable powers under ERISA; whether to defer to plain contract language doesn’t seem to have been one of the controverted issues. The best argument for cert, from what I can see, is that there is something of a circuit split on the detrimental reliance standard. Is there anything else that should count as unusual or noteworthy about the claimants’ side prevailing?

  • > [DWI: ] man argues legal limit discriminates against alcoholics

    When I first saw the defense claim of better-than-average ability to hold his liquor, I assumed he had been caught with a 0.09 reading at a random stop. It is a much less convincing claim from someone who had lost control of his car, with a blood-alcohol reading of 0.29.

  • “Should the governments give LGBT-owned businesses a leg up in public contracts?”

    Affirmative action preferences for homosexuals has been hinted at (the first proposal for it I remember seeing was in an item in the New York Law Journal many years ago, by a lawyer from Cleary Gottlieb, if my memory is correct), but has never gotten off the ground…yet.
    I believe this would have been seriously considered, or at least given a political cost/benefit analysis, in a Hillary Clinton administration. The obvious problem with this, unlike race, or even Hispanic heritage (generally done by last name, I believe) is proving that you belong to the protected class.
    The political benefit to whoever managed to enact this into law/regulation/guidance memo status (these days there does not seem to be any difference among the three) might be huge.
    Unlike black people, for example, gays are not financially disadvantaged, and can make significant campaign donations.

    • For what it’s worth, I believe the specialized sector of the business community that has grown up around rules prescribing minority-owned contracting, female-owned contracting, and so forth includes many persons who are quite affluent and who do make significant campaign donations.