Doctors need legal assurance today that they won’t get sued if they send low-risk non-virus cases home rather than keep them in scarce beds getting marginally valuable tests — even if it is only a temporary step for the duration of the emergency. [Jeremy Samuel Faust, Washington Post; Faust is an emergency physician at Brigham & Women’s in Boston, and an instructor at Harvard Medical School]
Archive for March, 2020
Campus climate roundup
Held over from a week or two back when there were still “campuses” (a joke on that):
- Not just California: mandatory diversity statements (“diversity oath”) examples in recent hiring from Ohio State, U. of Connecticut, Purdue, Cornell [John Cochrane, earlier]
- Disturbing: Canadian bioethicist says “possible solution” to conscience-rights debate is to bar persons with scruples against participating in medically assisted death or abortion from entering medical or pharmacy school in first place [Rachel Browne, Global News]
- If you guessed North Carolina would not be friendly territory for obligatory social justice and cultural studies curriculum, you guessed wrong [David Randall, Martin Center]
- Claim: clinical education in law schools is moving away from “the social justice values that have been [its] hallmark.” Another way of looking at it: it might be moving at last toward better viewpoint neutrality [Paul Caron/TaxProf]
- “Joe Biden’s Record on Campus Due Process Has Been Abysmal. Is It a Preview of His Presidency?” [Emily Yoffe] “Harvard Debuts Anonymous Online Title IX Reporting Form” [Simone Chu and Iris Lewis, The Crimson]
- “Bias Response Teams Silence Civic Debate” [George LaNoue, Law and Liberty on Speech First v. Fenves over University of Texas policies]
First Amendment might not let Mississippi licensing board go after online map service
From Institute for Justice’s “Short Circuit”: “Using publicly available descriptions of property boundaries, startup company draws lines on satellite photos, which helps its customers, community banks, visualize their property assets and identify issues (such as a property’s legal description not describing a completed shape). Mississippi regulators: That is the unlicensed practice of surveying, a civil and criminal offense. Fifth Circuit: There is no occupational speech exception to the First Amendment. The startup’s challenge should not have been dismissed. (This is an IJ case.)” In the 2018 case of NIFLA v. Becerra, the Supreme Court rejected a former doctrine that lower levels of First Amendment protection applied to “professional speech.” “The Board’s expansive regulatory theory would allow it to shut down Google Maps, Zillow and other map-based apps.” [Institute for Justice case page]
Easing license burdens for the duration, and afterward
In two emergency declarations Thursday, governors eased the burdens of licensing for the duration of the coronavirus emergency: Massachusetts Gov. Charlie Baker announced that persons holding valid out-of-state medical licenses could get them recognized on one-day approval, while Maryland Gov. Larry Hogan extended the expiration dates of all licenses, permits, registrations, and the like until 30 days after the end of the emergency. I put it in context in a new Cato post.
COVID-19 pandemic roundup
- Certificate-of-need laws in 38 states restrict hospital bed capacity by giving competitors a lever to object. More beds would have helped with emergency preparedness [Jeffrey Singer; more from Eric Boehm; bed crisis feared within weeks]
- White House, Congress negotiate on liability-limit measure aimed at freeing up 31 million expired but usable masks; “3M and Honeywell don’t feel comfortable providing them without assurances they won’t be sued.” [Michael Wilner, McClatchy; latest on HHS proclamation] Between death, business interruption, and enormous disruption to business practice, a landscape of litigation opens up [Bob Van Voris et al., Fortune]
- Proposed executive order would bar import of critical medical supplies from China, closing supposed “loophole” that could save your loved one’s life as shortages of ventilators loom [Ana Swanson, New York Times; Greta Privitera, Politico Europe on triage decisions at Italian hospitals reeling under equipment shortages]
- Courts canceling jury trials as virus spreads [Eric Turkewitz] Supreme Court building closes to public until further notice;
- Newark, N.J. threatens to prosecute persons who make false statements about the pandemic [Mike Masnick, TechDirt (“a masterclass in how not to deal with the problem of misinformation about the coronavirus”); Eugene Volokh (while some kinds of lies can be criminalized consistent with the First Amendment, many of those relevant here cannot]
- Memo to HR: EEOC has advised “that taking the temperature of all employees may violate the ADA under some circumstances, but has indicated that the rules may change during a pandemic” [Daniel Schwartz; employee temperature checks in Singapore]
Regulators should get out of the way of broad COVID-19 testing
“After suffering from the initial outbreak of the novel coronavirus (COVID-19), China appears to have succeeded at turning around its spread through the use of highly coercive measures such as widespread home confinement of both healthy and sick persons. Can societies with more individual liberty match its success without losing their character?” My new Cato piece argues that widespread testing has been a key to South Korea’s success and if the United States is to follow up it needs to open up regulatory permissions. With bonus provocation at the end about Bill Gates and billionaires!
State lawmakers introduce anti-free-speech bills as a “courtesy.” Courtesy to whom?
“The executive director of the [Rhode Island] ACLU called the bill a ‘direct attack’ on press freedom, while the head of the newspaper association called it ‘laughable and frightening.'” So how’d it get introduced? My Tuesday piece at Cato inquires.
March 11 roundup
- Slightly afield from law, but good watching: Yale’s Nicholas Christakis speaks at Cato on his new book Blueprint: The Evolutionary Origins of a Good Society [Cato Forum]
- Tech platform regulation: “The ‘EARN IT’ Act Is Another Terrible Proposal to ‘Reform’ Section 230” [Eric Goldman and more] “Why Does The NY Times Seem Literally Incapable Of Reporting Accurately On Section 230?” [Mike Masnick, TechDirt]
- Author of new book, a Fordham lawprof, “wants the U.S. Supreme Court (and other federal courts) to enforce international law standards against backward American states and localities.” It’s a no-go, says Jeremy Rabkin [Law and Liberty reviewing Martin Flaherty, Restoring the Global Judiciary]
- Police transparency, Annie E. Casey Foundation, county liquor stores and bicycle licenses in Montgomery County, and more in my new Maryland policy roundup [Free State Notes]
- Yikes: former BigLaw partner who specialized in product liability subrogation claims sentenced to five years on charges of defrauding almost $3.5 million from insurers, manufacturers and others [Judy Greenwald, Business Insurance]
- Somehow missed this in 2018: Texas lawyer disbarred for barratry is re-elected while in jail [Lowering the Bar]
Will SCOTUS review a challenge to mandatory bar dues?
Like a number of other states, Wisconsin by law requires lawyers to join and pay dues to its state bar, which takes stands on controversial issues. Two earlier SCOTUS cases upheld mandatory bar rules. Has the Janus decision changed that? [Deborah La Fetra, Ilya Shapiro, and Trevor Burrus on Cato certiorari brief in Jarchow v. State Bar of Wisconsin; Alison Frankel, Reuters; Eugene Volokh (in second case seeking certiorari, Fleck v. Wetch, Eighth Circuit rejected challenge to North Dakota dues; and note update that Supreme Court has denied certiorari in that North Dakota case); earlier here (Louisiana challenge), here, here (Texas)]
Trump campaign files round of defamation suits
Donald Trump had a long record of filing defamation lawsuits before running for president, and as a candidate he famously vowed to “open up” libel laws to allow more suits. Now, over the past two weeks, his campaign has sued three news organizations, the New York Times, the Washington Post, and CNN, in each case alleging libel. [Eugene Volokh (summarizing Wall Street Journal coverage of Times and Post suits); Fadel Allassan, Axios (CNN suit)] Rep. Devin Nunes, a presidential ally, has filed seven suits against various entities [earlier and more]
Given the broad protections for writing about public figures enunciated by the Supreme Court in the case of New York Times v. Sullivan, few if any of these suits are likely to prevail at final judgment. Still, a suit like this serves “to drag people into court and imposes the time, burden, distraction, and cost of having to defend themselves, with the added benefit that it may make people and the press less willing to criticize these people. ” [Howard Wasserman, PrawfsBlawg] Time for state legislators to consider enacting stronger protections against unfounded suits?