- Sen. Bernie Sanders and Rep. Ro Khanna introduce legislation to punish employers whose workforce draws on government programs, and even lefty Center for Budget and Policy Priorities sees plenty of problems with that [Steve Goldstein/MarketWatch; Robert Greenstein, Sharon Parrott, Chye-Ching Huang, CBPP; Zuri Davis, Reason; related Ryan Bourne thread]
- “Prevailing Wage Legislation and the Continuing Significance of Race” [David E. Bernstein, Notre Dame Journal on Legislation]
- Study finds that after Minnesota jacked up minimum wage, youth employment and restaurant employment fell, restaurant prices rose [Noah Williams, Center for Research on the Wisconsin Economy]
- In a sleeper SCOTUS case this term, Encino Motorcars v. Navarro, on whether service advisors at car dealerships are exempt from the Fair Labor Standards Act (FLSA), Justice Thomas for a 5-4 majority came down in favor of the position that FLSA exemptions should be read fairly, rather than narrowly; let’s hope this points to a wider retreat from the unsound practice of reading unnatural breadth into purportedly remedial statutes even when they contain no instruction to do so [Federalist Society podcast with Tammy McCutchen; Sachin Pandya/Workplace Prof (critical of ruling), Andrew Strom/On Labor (likewise)]
- “Why a Democratic City Council Is Working With a Republican Congress To Overturn a Minimum Wage Bill” [Eric Boehm on D.C.’s Initiative 77] “How Regulation Eliminated Your Waiter” [Ira Stoll on California labor laws]
- 1915 study on Oregon: “The belief was very prevalent among store women that the minimum wage had wrought only harm to them as a whole.” [David Henderson quoting Marie L. Obenauer and Bertha von der Nienburg, Bureau of Labor Statistics]
Archive for September, 2018
DeVos & Co. move to revamp Title IX campus sex misconduct rules
Although formal proposals are not due until next month, word has begun to filter out about the U.S. Department of Education’s plans to revisit and revamp the Obama administration’s Title IX guidelines on discipline for campus sexual misconduct. Emily Yoffe at The Atlantic, whose work in this area we’ve covered before, has more:
A year ago, Department of Education Secretary Betsy DeVos declared that the rules and procedures put in place by the Obama administration on this volatile subject had created a “failed system” that brought justice neither to accuser or accused. She promised to change that….
As I wrote in a three-part Atlantic series last September, the use of Title IX to protect female students, however well-intentioned, has resulted in the over-policing of sex between young adults. It has also sometimes resulted in adjudications that assume guilt, rely on junk science, gut fundamental fairness, engage in racial animus, and disregard the effects of ending men’s educations and crushing futures. The Times’s story was based on a leak, so we still need to see all the rules in their final form. Because these proposed rules will go through an administrative process known as “notice and comment” – meaning the public can weigh in — revisions are likely….
Among items on the reform agenda are the definition of harassment (moving toward the Supreme Court’s definition as opposed to the broader definition used now); the scope of the university’s duty to address wrongdoing (filed complaints only, or any appearance of misconduct whether or not there is a complainant?); whether colleges are obliged to punish misconduct occurring far away or during the summer, as opposed to on campus; sharing evidence with the accused; and allowing colleges to adopt higher standards of proof. Also under scrutiny are the training manuals and materials used for Title IX investigators; many colleges have yielded to pressure to adopt so-called trauma-informed response to accusations, which invokes dubious scientific assertions to stack the process toward overlooking flaws in accusers’ stories and assuming the worst of the accused.
Some of the proposals might make little difference or even encourage dubious “single-investigator” formats, but overall, Yoffe concludes, their thrust would be to “move the policy in a more just direction.”
More: and don’t miss the new analysis by KC Johnson and Stuart Taylor, Jr. in the Weekly Standard.
Brett Kavanaugh and Merrick Garland: a note from the hearing
In Supreme Court nominee Brett Kavanaugh’s opening statement at his hearing Tuesday, he praised Merrick Garland, with whom he serves on the D.C. Circuit, as “our superb chief judge.”
If you were surprised by that, you shouldn’t have been. When President Obama nominated Garland to the high court, Judge Kavanaugh described his colleague as “supremely qualified by the objective characteristics of experience, temperament, writing ability, scholarly ability for the Supreme Court … He has been a role model to me in how he goes about his job.”
In fact, it has been reported in at least one place that one reason Kavanaugh was left off Trump’s initial list of SCOTUS nominees was that he had been so vocal and public in praising Garland’s nomination.
Now, it would be understandable if neither side in the partisan confirmation wars chose to emphasize this bit of background to the story. Republican strategists might not be keen on reminding listeners of what their party did with Garland’s nomination, and might also worry about eroding enthusiasm for Kavanaugh among certain elements of their base. Democratic strategists, meanwhile, might see the episode as one in which the present nominee comes off as not-a-monster, and, well, you can’t have that.
The lesson, if there is one, might be that the federal courts are not as polarized and tribal as much of the higher political class and punditry at nomination time. [cross-posted from Cato at Liberty]
September 5 roundup
- Event barns booming as wedding venues, but some owners of traditional banquet halls want them to be subject to heavier regulation, as by requiring use of licensed bartenders [Stephanie Morse, Milwaukee Journal-Sentinel]
- Protectionism and smuggling in ancien regime France: “Before Drug Prohibition, There Was the War on Calico” [Virginia Postrel]
- Thread unpacks “Big Ag bad, family farms good” platitudes [Sarah Taber]
- “An Oklahoma judge has agreed to resign after he was accused of using his contempt powers to jail people for infractions such as leaving sunflower seeds in his courtroom and talking in court” [ABA Journal]
- Update: North Carolina gerrymandering plaintiffs back off, concede impracticality of using new maps in time for upcoming election [Robert Barnes, Washington Post, earlier]
- “Aretha Franklin Died Without a Will, Bequeathing Estate Issues To Her Heirs” [Caron/TaxProf]
Ben Sasse on how the three branches of government have malfunctioned
Tuesday’s Senate star, Sen. Ben Sasse (R-Neb.), in his opening statement at the Brett Kavanaugh confirmation hearing:
The oft-recurring phrase
“…render the website unintelligible and prevent navigation and use.” So many similar ADA claims with the same lawyer involved [Court Listener via Tim Cushing]
In related news, a blind woman who sued Brooklyn Brewery over its allegedly inaccessible website has sued at least 24 other defendants as well. [Colin Mixson, Brooklyn Paper; our coverage of web accessibility and of ADA filing mills]
Mike McConnell on the Brett Kavanaugh nomination
Michael McConnell, the esteemed Stanford law professor, writing in The Hill:
There is plenty of controversy over the nomination of Brett Kavanaugh to the Supreme Court, but almost none of it is about him. Even detractors appear to have abandoned any claim that he lacks the intellect, experience, or temperament to be an outstanding justice. Critics have combed through 12 years of his opinions on the District of Columbia Circuit, second only to the Supreme Court in the high profile cases it decides, without coming across a single opinion that is half baked or unreasonable…..
Temperamentally and philosophically, Kavanaugh more closely resembles the moderate John Roberts than the fire-breathing monster some of his detractors are attempting to portray. It would not surprise me, although I could be overly optimistic here, that with Kavanaugh on the Supreme Court and Justices Breyer and Kagan showing signs of willingness to break with their more leftward brethren or sistren, the new Supreme Court could have a serious principled middle for the first time in decades. That would be therapeutic for our obsessively polarized country….
Some of the hostility of Democrats to any nomination of a Republican president, no matter how qualified, is due to backlash against the Republican Senate’s refusal to consider the nomination of Judge Garland, an exemplary nominee, to the Supreme Court in 2016. Of course, Republicans thought their actions toward Garland were a justifiable backlash to Democratic refusals to consider Republican judicial nominees in election years in the past. Whatever the merits of those arguments, they should not be allowed to poison the well of Supreme Court nominations forever, or the nation will pay a stiff price….
Whatever any of us might think of Trump, he was elected president by a vote of the people in accordance with constitutional processes. Unless and until actual charges are brought and proven against him, the people of the United States are entitled to the presidency they voted for. In my opinion, it would be highly improper for any senator to vote against an exemplary nominee to the Supreme Court in the anticipation that the president may at some time in the future be impeached, charged, or convicted of a crime. Unless and until that happens, Trump is entitled to nominate a new justice to the Supreme Court, and we should all be pleased and relieved that the nominee is a person of the character and ability of Brett Kavanaugh.
Put down that balloon animal, Mr. Clown, and back away slowly
As the campaign against single-use plastics picks up speed, straws, cup lids and takeout Styrofoam will be just the beginning. One likely target: balloons [Christian Britschgi, Reason]
Employers may need to accommodate claims of “digital addiction”
“If forms of ‘digital addiction’ qualify as a diagnosed psychiatric disorder, then employees who suffer from it may be protected by the ADA.” Employers might then be obliged under federal law to enter the so-called interactive process to negotiate possible courses of action and accommodations with the affected employee, rather than lay down hard-and-fast rules for what sorts of conduct will result in termination. [Jon Hyman, Ohio Employer Law Blog]
“How One Company Got the FDA to Ban All Its Competitors”
Via columnist John Kelly at the Washington Post, the story of an all-but-forgotten circa-1980 scandal at the FDA over contact lens cleaning solutions [David Boaz, Cato]