Save the date for this Tues., Sept. 17 event including a roster of Cato regulars plus outside stars including Hon. Thomas Hardiman (3rd Circuit), Jan Crawford, Tom Goldstein, Paul Larkin Jr., and Brianne Gorod. I’ll be moderating an afternoon panel with Joshua Wright, Ilya Somin, and Andrew Grossman.
Archive for August, 2019
The ABA and “affirmative consent” in criminal law
Many colleges have adopted a principle known as “affirmative consent,” which makes it easier to infer misconduct (and thus impose expulsion or other discipline) when a record is lacking in verbal or physical evidence one way or the other as to whether a student’s sexual encounter with another student was consensual. It might seem unthinkable to apply such a standard in criminal law, where the consequences are not expulsion but imprisonment and the burdens of sex offender registration.
And yet that’s the gist of a resolution urged on the American Bar Association by its Commission on Domestic and Sexual Violence. Read my account at Cato, and then for additional insight check out the letter from Bay Area employment lawyer Mark Schickman, who chairs that sponsoring commission, especially the portions characterizing “The Principle Behind the Opposition.” Emily Yoffe’s investigation into the oddly influential “freeze” theory is here.
It was a close-fought thing, but Monday afternoon the assembled ABA House of Delegates voted to table the resolution 256-165, killing it for this conference at least.
Land use and property roundup
- When does a taking of land occur? The wrong answer would let the government push around owners in disputes over rails-to-trails projects [Trevor Burrus on Cato Institute amicus brief on Federal Circuit case of Caquelin v. U.S.]
- Though the federal government can’t successfully manage the Western lands it already has, it will soon extend its grip over more. This time Republicans are responsible [Chris Edwards, Cato]
- “Sydney’s rental prices are declining because it’s seeing a building boom. The size of Sydney’s apartment market has doubled in two years, and landlords have had to drop rents in order to get tenants.” [Scott Shackford, Reason]
- To make NYC’s public housing towers a better place to live, throw Le Corbusier off the balcony [Howard Husock, New York Post]
- Economist Robert H. Nelson, R.I.P. [Jane Shaw, Cato Regulation Magazine]
- Update: Baltimore eminent domain case against owner of Preakness Stakes race and Pimlico track dropped for now, but remains as bludgeon in closet [Ilya Somin, earlier here, etc.]
Four Harvard lawprofs who stood on principle
Worth a close reading: Wesley Yang profiles four feminist Harvard Law School professors (Jeannie Suk Gersen, Elizabeth Bartholet, Nancy Gertner, Janet Halley) who have taken a strong stand in favor of due process in Title IX proceedings, in the face of the sorts of pressures you can imagine. [Chronicle of Higher Education; earlier here (letter with 28 signers), here and here (Suk), here (Bartholet), here (Halley), and here]
It’s a long overdue profile in the national press for these four brilliant women, and let’s hope the first of many. Their courage and principle should stand as an inspiration and challenge to others in academic life.
In suburban Maryland, much ado about ADUs
As population and the job base in the Washington, D.C. area continue to expand, households face a crunch in the price of housing, made worse by the reluctance of local governments to permit residential construction near most of the major employment centers. A unanimous county council in Montgomery County, Md. has now made it slightly easier for homeowners to create in-law units or backyard cottages, but along the way had to face down noisy opposition. I tell the story in a new Cato post.
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Pharmaceutical roundup
- Starting in mid-1990s German doctors began writing many more opioid prescriptions. But addiction and overdose rates did not skyrocket. What made Germany different? [Jeffrey Singer, Cato; Jacob Sullum, Reason]
- Will the Supreme Court’s unanimous ruling in Merck v. Albrecht manage to clarify preemption law? [Beck, Drug & Device Law and more; Jonah Knobler, Washington Legal Foundation]
- Money didn’t go into state treasury: “Oklahoma Lawmakers not so Happy About Purdue Pharma Settlement” [Sean Murphy, Insurance Journal, more] “Nevada AG’s old law firm can make up to $350 million on his opioid lawsuit” [Daniel Fisher, Legal Newsline] “List of firms handling Louisiana’s opioid lawsuit balloons to 17, including politically connected ones” [Sam Karlin, The Advocate] Richard Epstein on opiate litigation [Ricochet]
- National Vaccine Injury Compensation Program: “Where Calls for Overturning Bruesewitz v. Wyeth Go Wrong” [Dorit Reiss, Petrie-Flom “Bill of Health”]
- “Drug lawsuit ads are scaring seniors to death” [P. Roosevelt Gilliam III and Susan Peschin, STAT]
- Senate Republicans file bill to fast-track FDA consideration of over-the-counter birth control pill [Elizabeth Nolan Brown]
Demands for new “domestic terrorism” laws
Since an attacker motivated by anti-immigration sentiments killed 22 at an El Paso, Texas Walmart, there has been a cry for new laws against “domestic terrorism.” Most who join in the outcry, however, haven’t begun to think through the implications, especially since these sorts of laws “rarely stay limited to their nominal purpose,” notes Fordham’s John Pfaff in a thread. “Criminal laws will inevitably be written broadly, and that breadth will inevitably mean they will expand their reach.”
I’m really struggling to understand what a “domestic terrorism” law would add.
Here’s the core part of Fed’s international terrorism statute:
Note that everything covered by the statute—murder, kidnapping, etc.—must already be a crime.
There’s nothing new… but real risks: pic.twitter.com/jnSusKkxPC
— John Pfaff (@JohnFPfaff) August 7, 2019
The Patriot Act created special warrants to go after terrorists. Over 11,000 such warrants were issued in 2013:
0.5% were used in terror cases.
80% were used in routine drug cases.https://t.co/ivKTOajBQTLaws like this always reach farther than we think. https://t.co/7tCUQ9LO4l
— John Pfaff (@JohnFPfaff) August 7, 2019
Bad reasons to push for new federal laws: Prager v. YouTube
Conservative commentator Dennis Prager has an op-ed in yesterday’s WSJ restating his claims (made in a lawsuit dismissed last year and re-filed this spring in a new suit) that YouTube restricted his “Prager University” videos owing to anti-conservative bias. These claims of unfair treatment have gotten wide circulation, especially since the popular Prager U. series for the most part presents mainstream conservative views in a calm rather than incendiary tone. In his op-ed, Prager speaks favorably about the enactment of new “laws governing big technology companies” to restrain “their hostility to conservative voices.”
This Mike Masnick thread (language) gives another side to the story. YouTube’s optional “restricted mode,” meant to limit kid viewing, isn’t important or much used (only 1.5% of users enable it). The PragerU shows at issue did have some content about topics like rape, murder, and genocide that might disturb younger children. And many other well-known shows see a larger share of their episodes put into restricted mode. Thus 12% of Prager U. videos have been put in restricted mode, compared with 24% of History Channel videos, 28% of Vox videos and 54% of Daily Show videos. Matthew Feeney at Cato, James Pethokoukis at AEI, and Billy Binion at Reason have more.
One irony I see in this is that conservatives up till recently have tended to favor promoting parental-control modes in social media, or even making them the default, and have accepted the inevitability that the automated algorithms that inevitably drive these modes when applied to large bodies of material may sometimes sweep broadly enough to screen out even some responsible, sober, and fact-based discussions of topics to which parents might not want to expose younger teens.
Having now seen these modes in action, they seem to be having second thoughts.
P.S. “Conservatives have also spent decades opposing any attempt to revive the FCC’s old Fairness Doctrine, which required broadcasters to be balanced in their programming on controversial issues. ‘FCC bureaucrats can neither determine what is “fair” nor enforce it,’ the Heritage Foundation said in 1993.” [Margaret Harding McGill and Daniel Lippman, Politico, on reports of new White House executive order]
More: John Samples, Cato (“Dennis Prager, Big-Government Conservative”).
August 7 roundup
- “We got nailed once because someone barehanded a bag of lettuce without a glove.” Kitchen-eye tales of NYC’s restaurant inspection regime [Saxon Baird, NY Eater]
- Positive reviews for new HUD regs on housing discrimination, affordability, and supply [National Review: Roger Clegg; Salim Furth]
- Sony isn’t making its robot companion dog available in Illinois because its facial recognition features fall under the state’s onerous Biometric Information Privacy Act; an earlier in-state casualty was Google’s “which museum portrait is your selfie like?” service [Megan Wollerton, CNet, earlier here and here] Is there any hope of slowing down the rush of class action suits filed under the law? [Chris Burt, Biometric Update]
- Victory on a-peel: “3rd Circuit rules maker of banana costume is entitled to ‘fruits of its intellectual labor'” [ABA Journal, earlier here, etc.]
- D.C. Circuit “Rips ‘Legal Artifice’ in Kasowitz Firm’s Megabillions Whistleblower Case” [Dan Packel, The American Lawyer; Cory Andrews, WLF]
- Congress passes a law framed as pro-veteran, doesn’t take the time to spell out quite how it works, years later we meet the (presumably unintended) losers in the form of nonprofits that employ blind and deaf workers [Julie Havlak, Carolina Journal, quotes me]