- Women-only co-working space in Washington, D.C. is packed with amenities. But is it legal? [Ally Schweitzer, WAMU]
- Hurry up and cert: Ninth Circuit en banc rules that use of past salary history violates federal Equal Pay Act [Reuters/KFGO; Marcia McCormick, Workplace Prof]
- Justice Ruth Ginsburg talks down idea of passing new laws in response to #MeToo harassment scandals: “We have the legal reforms — we have had them for a long time….The laws are there and the laws are in place; it takes people to step forward and use them.” [Jeffrey Rosen interview, The Atlantic]
- “No Fingerprinting as a Religious Accommodation? Yes, Says Court” [Daniel Schwartz]
- “Equal Pay Day Should Be in January” [Vanessa Brown Calder, Cato] “Mythbusting Paid Leave Statistics” [same] “Women who have their first child before 25 or after 35 eventually close the salary divide with their husbands,” but new moms between 25-35 don’t [Claire Cain Miller, New York Times] “When factors such as experience, industry and job level were taken into account, women earn 97.8 cents for every dollar earned by their male peers for doing the same work.” [Stephen Miller, SHRM] More: Tyler Cowen;
- “A waiter was fired for being combative, aggressive and something of a bully. His defense? He’s not rude. He’s French and his former bosses are discriminating against his culture and heritage.” [Laura M. Holson, New York Times via Twitter]
Archive for April, 2018
The case of Alfie Evans and the best-interests-of-the-child standard
British law gives more of a share in decision-making about children’s lives to the state, and less to the parents, than is typical in American law. I like American law better. [Damian Thompson, The Spectator]
A reader recommends this piece by barrister Matthew Scott in Quillette defending the British authorities’ actions. While it fills in much useful detail, I’m not at all persuaded on the central issue of whether it was proper for British law in 1989 to oust parental rights from areas in which they had been long respected, all in the name of the best interests of the child as discerned by courts, experts, and the state. In my first book, The Litigation Explosion, I argued against the specious attractions of a best-interest-of-the-child standard in the child custody modification context, pointing out that to upset an existing decree of custody it should be needful to allege something stronger than that the child would be marginally better off with a switch, or that the case for a switch was supported by marginally better expert avowals than the case for leaving custody where it was. Instead, presumptions of stability and family integrity should be respected, to be overcome only by a strong showing of likely substantial harm from not switching. Likewise, the presumption that parents are the ones to direct their infant children’s medical care should be a strong one, rebuttable to be sure in some cases of wretched or misguided parental errancy, but not simply by rhetorical flourishes, even when embodied in law, about how the best interests of the child must conquer all and we determine what those are.
For examples of the narrower scope of parental rights in the United Kingdom and its subdivisions, see this 2015 story (parents warned they may be reported for neglect if they allow under-18s to play adult-themed videogames such as Call of Duty and Grand Theft Auto); this from 2009 (seven children seized from obese couple in Scotland; but note American trends too); and the Scottish Named Persons scheme. More on expertise and best-interests-of-the-child standards: Megan McArdle, Jim Geraghty.
Wisconsin’s butter-grading scheme
Wisconsin, where dairy producers hold great political sway, maintains a uniquely onerous scheme of butter grading that “has nothing to do with public health or nutrition” but does serve to restrict the sale of butter made in other states, including high-end artisanal butter. Representing Ohio’s Minerva Dairy, the Pacific Legal Foundation has sued to overturn the regulation on Commerce Clause, Due Process, and Equal Protection theories, and Cato has now filed a pun-strewn amicus supporting the due process and equal protection claims [Ilya Shapiro and Matt Larosiere]
Ninth Circuit takes down PETA in monkey-selfie case
“The Ninth Circuit has now said we should not use animals as props in ideologically driven litigation.” [Ted Folkman, Letters Blogatory] In particular:
But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own.
The footnote ends with a devastating indictment of PETA’s entire project:
Puzzlingly, while representing to the world that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,” PETA seems to employ Naruto as an unwitting pawn in its ideological goals.
Earlier here.
Melnick, “The Transformation of Title IX”
Not seen yet, but promises to be an important read: R. Shep Melnick’s “The Transformation of Title IX: Regulating Gender Equality in Education” Publisher’s blurb:
Few laws have had such far-reaching impact as Title IX of the Education Amendments of 1972. Intended to give girls and women greater access to sports programs and other courses of study in schools and colleges, the law has since been used by judges and agencies to expand a wide range of antidiscrimination policies – most recently the Obama administration’s 2016 mandates on sexual harassment and transgender rights.
In this comprehensive review of how Title IX has been implemented, Boston College political science professor R. Shep Melnick analyzes how interpretations of “equal educational opportunity” have changed over the years. In terms accessible to non-lawyers, Melnick examines how Title IX has become a central part of legal and political campaigns to correct gender stereotypes, not only in academic settings but in society at large. Title IX thus has become a major factor in America’s culture wars – and almost certainly will remain so for years to come.
Related: “23 Cornell Law Profs support suspended male student in Title IX court appeal” [William Jacobson, Legal Insurrection]
Labor and employment roundup
- “Three Bad Arguments for Government Paid Leave” [Vanessa Brown Calder, Cato]
- So much wrong with Bernie Sanders scheme of a guaranteed government job for everyone [Ryan Bourne, Cato] “This old socialist standby deserves to stay exactly where we left it — on the ash heap of history.” [Megan McArdle]
- NYC legislates “dues checkoff” payable to activist groups [Ruth McCambridge, Nonprofit Quarterly]
- “Ralph Lauren interns get next to nothing after winning lawsuit” [Julia Marsh, New York Post]
- Uh-oh: Ford Foundation funding Harvard Law School project to redesign U.S. labor law from ground up [Benjamin Sachs, On Labor]
- The federal law that forbids employers from ceasing to participate in union (multiemployer) pension plans unless they pay massive “withdrawal liability” including obligations of other employers is unjust and destructive. Now it’s playing havoc with the makers of Peeps confections [Damien Paletta, Washington Post/Lehigh Valley Live, related earlier]
Prince’s family suing Walgreens, hospital re: overdose death
“Prince’s heirs have sued Walgreens and the Illinois hospital that treated the music superstar after he suffered from an opioid overdose, alleging that a doctor and various pharmacists failed to provide Prince with reasonable care, contributing to his death.” [Amy Forliti, AP/St. Paul Pioneer-Press]
“Impenetrable legalese” and the push to regulate
The lead anecdote in a Bloomberg story on the evils of tech fine print is on PayPal deleting the accounts of persons who joined before age 18. Yet on its own internal evidence, this seemingly irrational action is pretty clearly a response to the risk of liability/regulatory exposures rather than some act of random malice. How many more instances of pointless runaround or “impenetrable legalese” are going to be occasioned by the ongoing push to regulate and assign new liability to data-intensive businesses? [Nate Lanxon, Bloomberg]
“The buffet had 35 full-time employees–all of whom, incidentally, have lost their jobs as a result of this lawsuit.”
A church outside Akron, Ohio, ran a cafeteria open to the public in which much of the labor was provided free by volunteer members of the congregation. The U.S. Department of Labor sued it on the grounds that it violates the minimum wage provisions of the Fair Labor Standards Act (FLSA) for an enterprise, church or otherwise, to use volunteer unpaid labor in a commercial setting. A trial court agreed, but now the Sixth Circuit has reversed and remanded, pointing out that “to be considered an employee within the meaning of the FLSA, a worker must first expect to receive compensation.”
Judge Raymond Kethledge, writing in concurrence, takes issue with the Department of Labor’s argument that the cafeteria volunteers count as employees because “their pastor spiritually ‘coerced’ them to work there. That argument’s premise — namely, that the Labor Act authorizes the Department to regulate the spiritual dialogue between pastor and congregation — assumes a power whose use would violate the Free Exercise Clause of the First Amendment.” Kethledge also points out that as “the record makes clear, the Buffet’s purpose was to allow the church’s members to proselytize among local residents who dined there,” and that along with its congregant volunteers the establishment “had 35 full-time paid employees — all of whom, incidentally, have lost their jobs as a result of this lawsuit.” [Acosta v. Cathedral Buffet et al. via Ted Frank on Twitter]
More: cross-posted, slightly expanded, at Cato.
Penn State cracks down on student outdoors clubs
“Penn State recently decreed that three student-led outdoor adventure groups—the hiking club, the cave exploration club, and the scuba club—would have to disband due to safety liability concerns, even though none of the long-running clubs had ever reported a problem.” In the case of hiking, a “key issue for administrators was that the Outing Club frequently visit locations with poor cell phone coverage.” [Lenore Skenazy and Robby Soave, Reason]