From the archives: Robert Reich on regulation through litigation

Notable from Overlawyered’s archives of 20 years ago, quoting former labor secretary Robert Reich, who was writing in the American Prospect on gun control through litigation:

The legal grounds for both the tobacco and gun suits “are stretches, to say the least. If any agreement to mislead any segment of the public is a ‘conspiracy’ under RICO, then America’s entire advertising industry is in deep trouble, not to mention HMOs, the legal profession, automobile dealers, and the Pentagon.”

“These novel legal theories give the administration extraordinary discretion to decide who’s misleading the public and whose products are defective. You might approve the outcomes in these two cases, but they establish a precedent for other cases you might find wildly unjust….But the biggest problem is that these lawsuits are blatant end-runs around the democratic process…. In short, the answer is to make democracy work better, not give up on it”.

Labor and employment roundup

  • More on presidential candidate Bernie Sanders’ big plans to regulate employment [Cato Daily Podcast with Ryan Bourne and Caleb Brown, related earlier]
  • It’s not just the joint employer rules, NLRB is rolling back Obama-era decisions in many other areas too: union elections, including “quickie” procedures [Laura I. Bernstein, Felhaber Larson]; confidentiality in workplace investigations and use of company email systems [Jon Hyman]
  • California Agricultural Labor Relations Board adopts a regulation entitling union organizers to enter farms whether owners approve or no. When such a mass incursion, with bullhorns, disrupts farm operations, has a taking of property occurred? Ninth Circuit says no [Pacific Legal Foundation; Metropolitan News-Enterprise; Federalist Society podcast with Wen Fa and Bethany Berger]
  • Study based on tax data finds typical member of top-earning 1% “derives most of his or her income from human capital, not financial capital” [David Henderson] Or on the other hand: “The [analytic] attempt to divide all income between labor and capital is a fool’s errand.” [Arnold Kling]
  • “Both the financial market crash and the aging of America’s industrial workforce are real phenomena. They did not, however, cause the multiemployer pension crisis.” [Charles Blahous, Economics21; more by Blahous here, here, and here; earlier]
  • Supervisor’s remarks critical of exercising FMLA leave options keep nurse’s lawsuit alive despite clients’ complaints about her behavior while visiting their homes [Ronald Tang, SHRM]

Proposal: small claims courts for police misconduct

A proposal from my Cato Institute colleague Clark Neily: small claims courts for low-level police misconduct. Ilya Somin praises it as among the few constitutional law ideas “that are simultaneously good, original, and potentially useful in the real world.” [Volokh Conspiracy] More: Howard Wasserman (similar ideas), Scott Greenfield and some other thoughts on small claims.

From Overlawyered posts to SCOTUS hypotheticals

At oral argument yesterday in Babb v. Wilkie, a case on the standard needed to prove age discrimination in federal employment, Chief Justice John Roberts offered a hypothetical of a younger manager who says “OK boomer” to a job applicant. [Mark Sherman, AP] In November, we and others discussed the legal pressure on employers to keep employees from using that phrase. More: William Baldwin, Forbes.

January 15 roundup

Facebook won’t set itself up as arbiter of campaign ads’ truth

Facebook has done the right thing by not committing to a promise to identify and block false campaign ads, despite political pressure to do so [John Samples, earlier] I don’t think many people have an especially high regard for Facebook’s authority as a guide to political truth. Instead I think the demand for such a promise was driven largely by groups and factions that expect to be good at bringing pressure on Facebook management in the contentious ban-wars that would be certain to result.

For a taste of how the label of “false” in political controversy can depend on ideological presumptions and contestable judgments, here’s Christopher Snowdon’s brisk review of the claim circulated toward the end of the U.K. election campaign that 88% of the Conservative ads (but, conveniently, none of the Labour ads) were dishonest.

U.S. Department of Labor steps back on joint-employer rule

The U.S. Department of Labor has proposed a final rule stepping back from the Obama administration’s damaging effort to stretch the definition of “joint employer” so as to tag companies with liability over the employment actions of many franchisees, subcontractors and even suppliers. “The new rule beats a retreat from the past administration’s aim ‘to force much more of the economy into the mold of large-payroll, unionized employers, a system for which the 1950s are often (wrongly) idealized.’ That very same goal is at the root of California’s unfolding debacle with AB5, a law that tries to force many lines of freelancing into a direct-employment model and is already harming large numbers of workers it had purported to help.” I explain in a new Cato post.

Libel, slander, and defamation roundup

  • Texas trims back its SLAPP law after complaints it was being used in circumstances far from original design [John G. Browning, D Magazine] Howard Wasserman on John Oliver on SLAPP suits [Prawfsblawg]
  • In the U.S., sovereign governments can’t sue for libel. Does that include Indian tribes? [TMZ, Eugene Volokh]
  • “Your Periodic Reminder that Blogging About Litigation Can Generate More Litigation” [Eric Goldman]
  • Virginia emerges as libel tourism destination in high-profile cases [Justin Jouvenal, Washington Post; Paul Alan Levy, Public Citizen on Devin Nunes action, earlier]
  • “Virginia Legislator Joe Morrissey Gets Called “Fool,” Sues, Arguing He’s Not a Fool” [Eugene Volokh] “Retired Law Professor Sues Lawyer-Commenters on Law Blog” [same]
  • “Kansas senate leader ordered to pay nearly $39,000 in legal fees to The Kansas City Star after a judge dismissed his defamation lawsuit” [Katie Bernard, Kansas City Star]