- “Is ‘Most of Government’ Unconstitutional?” Battle over nondelegation continues after Gundy v. U.S. [Robert VerBruggen, Federalist Society panel video with Ronald Cass, David Schoenbrod, Kristin Hickman, Alan Morrison, Hon. Ryan Nelson]
- Order requiring independent agencies to notify OIRA of major regulations might prove a big step [Sam Batkins and Ike Brannon, Regulation; Cato Daily Podcast with Brannon and Caleb Brown]
- Biestek v. Berryhill: Supreme Court holds agencies can rely on expert witness’s opinion even when witness refuses to provide data underlying it [Federalist Society teleforum with Kent Barnett and Richard Pierce]
- “The Congressional Review Act in an Election Year” [Federalist Society teleforum with Paul Larkin, Amit Narang, and Jonathan Wood]
- “The Need for Humility in Policymaking: Lessons from Regulatory Policy” [Cato event video with Stefanie Haeffele, Anne Hobson, and Chelsea Follett]
- If Chevron doctrine falls, will major regulatory precedents fall with it? [Christopher Marraro and Gary Marfin, WLF, Federalist Society panel video with Mark Chenoweth, David Doniger, Kristin Hickman, David Schoenbrod, Jennifer Mascott]
Archive for February, 2020
Another company, Oracle, stands up to the federal contract cops
Among the most feared federal regulators, and one created largely through presidential strokes of the pen rather than by Congressional blueprint, is the Department of Labor’s Office of Federal Contract Compliance Programs, or OFCCP. The agency’s investigators go on wide-ranging fishing expeditions seeking evidence of discrimination at large companies, most of which hold federal contracts of one sort or another. “Instead of holding firms accountable when they engage in real discrimination against their employees, the agency has become a government arm for securing high-dollar settlements on dubious grounds.” In its audits demanding large back pay sums, for example, the “government fails to compare like employees to like, and it doesn’t control for perfectly innocent variables that explain pay differences.”
As OFCCP has turned into a combination social engineer and extractor of big-ticket settlements, few big companies are willing to fight back, given the breadth of arbitrary power the agency holds over them as well as the distant threat of debarment or other sanctions. But recently two big tech firms have stepped forward as exceptions: Google, in a dispute we wrote about in 2017 on demands for employee documents, and now Oracle, which is suing rather than accept what it considers an unreasonable settlement demand. [Veronique de Rugy, syndicated/Casper Star Tribune; WSJ editorial; Kate Cox, ArsTechnica; Anthony Kaylin, ASE; Pamela Wolf, CCH]
More about University of California diversity oaths
Details continue to emerge about the University of California’s use of mandatory diversity statements in faculty hiring (earlier here, etc.) In Berkeley life sciences hiring “diversity statements were used at the outset of searches to eliminate candidates.. … No matter how good your scholarship, if you didn’t pass the diversity [advocacy] cutoff (a score of 11 in the second search), you were toast.” [Jerry Coyne; John Cochrane]
“UC Berkeley has publicized its rubric for assessing peoples’ diversity and inclusion statements. You get 5 points for ‘Clear and detailed ideas for…advancing equity and inclusion…through their research, teaching, and/or service.’ Note word ‘research’.” [Agnes Callard] What if you embark on research that bears on questions of equity and inclusion but it reaches findings that do not advance the cause?
UCLA law professor Stephen Bainbridge, a friend of this site, recently chose to submit and publish a diversity statement emphasizing his efforts to foster a more ideologically diverse atmosphere at his UC campus — testing whether diversity as such, or only some manifestations of it, are the goal [AEI “Carpe Diem”] It caused a stir [Bainbridge blog, reactions and emails; some faculty at campuses like UC Davis have begun to push back] Given that UC is a public university, the prospects for a legal challenge appear strong, and there is interest in mounting a suit [Brian Leiter]
Meanwhile at the national and federal level, a $241 million cluster-hire grant program from the National Institutes of Health (NIH) “is requiring every candidate to prove that they have already promoted diversity”; among those who may lose out are “minority candidates who have been doing things other than ‘changing the culture'” [Jerry Coyne]
February 5 roundup
- If your personal injury lawyer instructs you not to file a claim with your health insurer concerning your medical care, you may instead be in the hands of a “lien doctor” [Sara Randazzo, WSJ, paywall]
- Supreme Court passes up opportunity to decide whether the Constitution’s Excessive Fines Clause applies to business defendants, and also whether a state can conjure an excessive fine out of existence by conceptually slicing it up into smaller daily fines [Ilya Shapiro on Cato support for certiorari petition in Dami Hospitality v. Colorado; petition denied January 13]
- Assessing (favorably) the Trump Administration record on regulation [Cato Daily Podcast with William Yeatman and Caleb Brown; Casey Mulligan, Economics 21]
- Twelve scholars pick their favorite dissents in Canadian law, and the result might furnish something of a mini-education in the jurisprudence of Canada, where unions, for example, are deemed to have a constitutional right to strike [Double Aspect via Prawfsblawg]
- Ben Barton of the University of Tennessee, whose books we’ve much admired, has a new one out on a topic dear to our heart, called Fixing Law Schools [Scott Jaschik interview, Inside Higher Ed via Caron/TaxProf]
- This, except not disapprovingly: current administration retreats from predecessor’s moves to define international human rights as including economic welfare and social justice claims [JoAnn Kamuf Ward and Catherine Coleman Flowers, Columbia Human Rights Law Review]
“Make room for lemonade stands”
A new bill in the Maryland General Assembly would prohibit counties and cities from banning children’s lemonade stands when set up occasionally on private property. I submitted these perhaps somewhat tongue-in-cheek comments advising lawmakers to stop them young:
“Today’s breaker of low-level regulations is tomorrow’s breaker of more serious regulations. The ten year old who dabbles in lemonade selling today could become tomorrow’s bringer of a church potluck casserole prepared in a home kitchen rather than an inspected commercial facility. A few years later, accustomed to the ways of regulation-breaking, that same miscreant might use that same home kitchen to bake a dozen pies, plus one for good luck, to bring to a homeless shelter for Thanksgiving.
“The time to stop it is when it starts — on the June day when the first pitcher of lemonade is mixed and hawked to passersby for 50 cents, plus a tip if you get lucky. Stop them young, or they will get used to serving others and along the way learning to act and think for themselves.
“Does this all sound a little crazy and upside down? Well, it is. We should make it easier, not harder, for kids to be enterprising, well organized, and friendly, all lessons of the lemonade stand.”
More here [cross-posted from Cato at Liberty]
“Houston Astros Scandal — Compensation May Be Available”
This is precious:
ADA and disabled rights roundup
- I’ve expanded the previous post in this space on Braille gift cards into a longer Cato post with a bit more on the politics and history of the ADA (Americans with Disabilities Act), mentioning along the way the recent closure of a popular San Jose coffee shop [Nadia Lopez, San Jose Spotlight; another San Jose deli story] Speaking of such happenings, “He says the suit could mean the end of the restaurant. ‘We would rather just close down if we have to pay that absurd amount of money,’ he says.” [Rancho Vegano in New York City’s East Harlem neighborhood; Michael Scotto, NY1 Spectrum News]
- “It’s about time! New rule could have emotional support animals bumped from planes” [Lynn Norment, Memphis Commercial Appeal; Wes Siler, Outside; David Koenig, AP]
- Videos on leading pornographic websites “lack enough closed captioning, claims the class-action lawsuit filed on behalf of all deaf and hard-of-hearing people.” [Noah Goldberg, New York Daily News]
- “Federal Website Access Lawsuit Numbers Increase 7 Percent in 2019, With Possible Bump from Supreme Court Denial of Cert in Domino’s” [Kristina M. Launey and Minh N. Vu, Seyfarth Shaw; Vu on related litigation trends in 2019]
- “White students in New York City are 10 times as likely as Asian students to have a 504 designation that allows extra time on the specialized high school entrance exams.” [Kevin Quealy and Eliza Shapiro, New York Times; Dana Goldstein and Jugal K. Patel, New York Times (“it helps to have cash” in getting pricey psychological assessments in Southern California); Education Next (“number of high school students being given special allowances for test-taking, such as extra time, has surged in recent years” with students in affluent suburbs more likely to get them)]
- “Law firms settle suit accusing them of civil RICO conspiracy to collect ADA settlements” [Debra Cassens Weiss, ABA Journal; Moore and Mission law firms, California; KGO/ABC7News on some Bay Area cases]
Tougher regulation of homebuilding makes developers more powerful
“Making big developers ‘give back’ to the community by running a gauntlet of concessions and fees seems like it should weaken their clout. Here’s why it actually does the opposite.” [Daniel Herriges, Strong Towns via Arnold Kling]
Alas, “the number of veto points over new construction is increasing,” reports Tyler Cowen on a new NBER paper. From the abstract: “the housing bust [after 2006] …did not lead any major market that previously was highly regulated to reverse course and deregulate [building] to any significant extent. Moreover, regulation in most large coastal markets increased over time.” [Joseph Gyourko, Jonathan Hartley, Jacob Krimmel, National Bureau of Economics Research via Marginal Revolution]
Dallas businessman calls cops 100x to report local crime. And then…
Under a nuisance abatement law enacted by the city of Dallas, the city can designate local businesses that it considers to be the scene of recurrent crime, and then shut down those businesses. It did this to a car wash whose owner proceeded to obtain from the city and make public more than a hundred 911 call records in which he had pleaded with the city to come do something about criminal activity. “Neighborhood leaders have been licking their chops on social media talking about what they’ll do with his two large corner lots when the city finally squeezes him hard enough to make him sell.” [Jim Schutze, Dallas Observer via Tim Cushing, TechDirt]