- New suits claim lack of web accessibility features in online employment applications violates California’s ADA equivalent law [Kristina M. Launey & Myra Villamor, Seyfarth Shaw]
- Sugar in candy? Who knew? [John O’Brien and John Breslin, Legal Newsline/Forbes] Slack-fill lawsuits reveal nonfunctional void within class-action industry [Baylen Linnekin]
- Musical instruments in court: the stories behind six famous gear disputes [Jay Laughton, Reverb last year]
- “Secret of David Copperfield’s signature trick revealed in slip-and-fall suit by audience volunteer” [ABA Journal]
- Given Congressional presence in area, California not entitled to use foie gras regulation to impose its views of duck and goose husbandry on producers outside state [Ilya Shapiro and Reilly Stephens on Cato cert amicus in Association des Eleveurs de Canards et d’Oies du Quebec v. Becerra]
- “The earliest versions of the “People’s Court” TV show used law professors as the judges. They were picked because they were articulate and looked like judges but weren’t state bar members; for bar members, being on the show was seen as unlawful advertising.” [@OrinKerr linking Roger M. Grace, Metropolitan News-Enterprise in 2003]
Archive for April, 2018
Supreme Court further reels in Alien Tort Statute
In my new Cato piece, I welcome the Supreme Court’s 5-4 decision in Jesner v. Arab Bank, in which it continued its series of cases cabining the for-a-while-adventurous scope courts had begun to assign to the Alien Tort Claims Act of 1789, often called the Alien Tort Statute. In its new decision, the Court ruled that unless Congress provides by law for such application, the statute does not apply to foreign corporations as distinct from natural persons. “Issues of foreign affairs are peculiarly the province of the political branches, which can weigh (and take responsibility for) the dangers of engendering friction with foreign sovereigns by extending liability…. The Court has simply made it clear that if the United States courts are to become a sort of human rights policeman to the world, it is Congress that will need to decide to fit them out for that task.” Justices Gorsuch, Alito, and Thomas, concurring, would have gone further in confining the ATS to the instances in which Congress has chosen to create a cause of action through legislation. More on Jesner from Amy Howe at SCOTUSBlog here and here; related on Kiobel in 2013 here, here, etc. More: Federalist Society “Courthouse Steps” with William Casto and Sam Estreicher.
Campus climate roundup
- Applicants for faculty positions at UC San Diego must file written statement detailing “past efforts, as well as future plans to advance diversity, equity and inclusion,” and are warned that lip service isn’t enough [Stephen Bainbridge]
- CUNY law dean: disruptors shouted down Josh Blackman for only eight minutes or so, nothing contrary to university rules in that [Robby Soave, earlier] “Hecklers of Campus Speakers: Easy Answers and Hard Questions” [Erica Goldberg] “Is Free Speech Becoming the Next Scare-Quote Domain?” [Paul Horwitz]
- On a happier note, a Festschrift and tribute essay collection for the inimitable and unstoppable Richard Epstein [University of Chicago Law School]
- “Readers may find it remarkable that these students expected the other people in the room to applaud and validate them for derailing the event.” [Robby Soave on Duke protest of alumni event] How to end a building occupation: “The phone calls [from NYU] advised parents that students who interfered with campus functions could [lose] financial aid or housing.” [Kyle Smith, NRO] “Some Pundits Say There’s No Campus Free Speech ‘Crisis.’ Here’s Why They’re Wrong” [Soave]
- “The people in that room all agreed that I had committed sexual harassment by showing my class this film” [Soave; Massachusetts College of Art & Design]
- A sociologist’s view: if my field is typical, postmodernism and intersectionalism haven’t taken over the academy [Nicholas Wolfinger]
Ken White on RICO gone loco
With results that are not flattering to the Democratic National Committee in its suit against Russia, the Trump campaign, and sundry others: “There are three groups that use RICO indiscriminately: pro se litigants complaining that the Bureau of Indian Affairs implanted SatNav in their junk, plaintiffs’ attorneys of the sort who go to court in a sports coat they keep in their glove compartment, and professional vexatious litigants. That’s why many federal judges often have standard orders they issue in civil RICO cases that say, in effect, ‘you think you have a valid RICO claim? Fine, answer these 20 complicated questions to help me sort it out.’ Judges don’t do that for other claims. …. DNC, your lawsuit appears to reflect you going all-in on public relations strategy at the expense of effective legal strategy.” [Popehat] More: Mike Masnick, TechDirt: “basically a laundry list of the laws that we regularly talk about (especially about how they’re abused in litigation). Seriously, look at the complaint. There’s a CFAA claim, an SCA claim, a DMCA claim, a “Trade Secrets Act” claim… and everyone’s favorite: a RICO claim.”
Medical roundup
- Outcry among British doctors after trainee pediatrician convicted of negligent homicide in death of patient following systemic errors at understaffed hospital [Telegraph, Saurabh Jha, Medscape, General Medical Council]
- “There’s no particular reason to think that smokers will be happier with denatured tobacco than drinkers have been with weak beer.” [J.D. Tuccille on FDA plans to reduce nicotine level in cigarettes]
- “Why Doesn’t the Surgeon General Seek FDA Reclassification of Naloxone to OTC?” [Jeffrey Singer, Cato]
- “1 in 3 physicians has been sued; by age 55, 1 in 2 hit with suit” [Kevin B. O’Reilly, AMA Wire] “Best and worst states for doctors” [John S Kiernan, WalletHub]
- “Soon came a ‘routine’ urine drug test, ostensibly to ensure she didn’t abuse the powerful drug. A year later, she got the bill for that test. It was $17,850.” [Beth Mole, ArsTechnica]
- Milkshakes could be next as sugar-tax Tories in Britain pursue the logic of joylessness [Andrew Stuttaford, National Review]
New Jersey high court: uninjured complainants can’t enforce consumer law
An unusually strong New Jersey law, the Truth-in-Consumer Contract, Notice and Warranty Act (“TCCWNA”), “prohibits consumer documents from containing provisions that violate clearly established rights or responsibilities,” whether or not the business that distributed the document then acts on the provision. Businesses that imprudently employ standard-form contracts available from office-supply stores, for example, may violate the law if the language deviates (as it often will) from more pro-consumer New Jersey doctrines. The law carries a $100 per-infraction fee that can be multiplied to large numbers applied across a range of transactions. A cottage industry of entrepreneurial suit-filing has grown up under the statute but now, in the case of Spade v. Select Comfort, a unanimous New Jersey Supreme Court has ruled that only consumers who have suffered actual damage can sue under the law, though damages can be non-monetary. The decision is likely to cut back on entrepreneurial uses of the law and in particular class actions where no evidence can be shown that a document’s improper wording harmed many members of a putative class. [Ryan P. Phair and Emily K. Bolles (Hunton & Williams), Lexology; earlier here, here, and related]
A headline we couldn’t resist clicking
“Association for Honest Attorneys loses its tax-exempt status after founder can’t find a lawyer” [Debra Cassens Weiss, ABA Journal]
“Congress whiffs on curbing civil forfeiture”
“When Congress passed that big spending plan, an anticipated reform to civil forfeiture had been curiously abandoned. Darpana Sheth of the Institute for Justice comments” in this Cato Daily Podcast with Caleb Brown.
On the other hand, there’s this from the state level: “Wisconsin joins Minnesota in signing law saying authorities now have to convict you of a crime before they can take your cash” [Christopher Ingraham, Washington Post/Grand Forks Herald]
“The Politicization of the MCAT”
Should gatekeepers to the medical profession test prospective doctors on their adherence to tenets of social justice? [Devorah Goldman, Weekly Standard]
First Amendment roundup
- Dangerous and misguided: Michigan pursues prosecution on charges of jury tampering of man who handed out “jury nullification” pamphlets on public sidewalk outside courthouse [Jay Schweikert, Cato; Jacob Sullum, earlier here, here, etc.]
- “‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration” [Eric Goldman] Among first casualties: Craigslist personals [Merrit Kennedy/NPR, Elizabeth Nolan Brown] And Elizabeth Nolan Brown joins (no relation) Caleb Brown on a Cato Daily Podcast;
- Is reprinting thumbnail headshots fair use? [Mike Masnick, TechDirt]
- “16 Pulse survivors sue Google, Facebook, Twitter for ‘supporting’ ISIS” [Daniel Dahm, WKMG Orlando]
- Not the group it used to be: ACLU calls for government-owned broadband, claims First Amendment may require as opposed to forbid state-operated communications infrastructure [Randolph May and Theodore Bolema, Free State Foundation] More: Scott Greenfield;
- Cato amicus commercial speech triple-header: Virginia’s ban on promoting happy hours (bars may hold them, but not promote them off premises) is an irrational leftover of Prohibition [Ilya Shapiro] While some commercial speech can be mandated, Ninth Circuit goes too far in upholding government-ordered scripts [Shapiro and Meggan Dewitt on structured-mortgage-payment case Nationwide Biweekly Administration v. Hubanks] Sign laws face tough scrutiny under 2015’s Reed v. Town of Gilbert, and Tennessee’s billboard law, which applies even to noncommercial speech, may run into trouble [Shapiro and Aaron Barnes]