In two new executive orders, Trump reins in agency guidance

Some important (and promising) news that otherwise might be missed: last week President Trump signed executive orders curtailing the use of subregulatory guidance, such as Dear Colleague letters and informal field advice, to create binding law [Susan Dudley, Forbes (guidance should be shield for regulated, not sword for regulators), Michael P. DeGrandis, Reason; first (rules for development of guidance and transparency) and second (use of guidance in civil enforcement) executive orders; background here and here]

“The First Amendment does not depend on whether everyone is in on the joke.”

“…when it comes to parody, the law requires a reasonable reader standard, not a ‘most gullible person on Facebook’ standard. The First Amendment does not depend on whether everyone is in on the joke.” — Judge Amul Thapar, Sixth Circuit, writing on behalf of a unanimous panel that “an Ohio man who was acquitted of a felony after creating a parody Facebook page that mocked a suburban Cleveland police department can sue the city and two police officers over his arrest.” [Jonathan Stempel, Reuters]

Related: everyone has the right to call politicians idiots, and that goes for gun store owners too [Eugene Volokh; North Carolina gun store owner’s billboard likened by sitting member of Congress to “inciting violence”]

ADA and disabled rights roundup

Great moments in public employee tenure

New York State has agreed to pay $6 million to settle claims that disabled residents of a Bronx group home for developmentally disabled adults were physically abused and neglected by staff, and the state has also spent a further $5.7 million thus far defending the staff members in court [Benjamin Weiser, New York Times] However, don’t assume that any public employees lost their jobs:

A state investigation later substantiated allegations of misconduct by 13 workers.

But the state failed to fire any of the employees, The New York Times reported in June.

A state arbitration process shielded the workers who had been cited for abuse and neglect. They were typically sent to other jobs in the system.

As part of the settlement, lawyers representing families insisted that the group home be removed from the control of the New York state government.

New on LGBT issues and the law: religious tax exemptions, Title VII coverage

On Thursday evening, “at a CNN candidate forum on gay rights, CNN’s Don Lemon asked Democratic candidate Beto O’Rourke: ‘religious institutions like colleges, churches, charities. Should they lose their tax-exempt status if they oppose same-sex marriage?’ O’Rourke answered ‘Yes’.” But O’Rourke’s dead wrong as a matter of politics, policy, and law, as I explain Friday post at Cato. I call his proposal “illiberal, anti-pluralist, inflammatory — and unconstitutional under current Supreme Court precedent,” and that’s just getting started. More: Bonnie Kristian/The Week; Charlie Nash, Mediaite (O’Rourke’s comments blasted by writers from across ideological spectrum). And: Dale Carpenter (principle of viewpoint neutrality in tax exemption law was vital to early gay rights movement; arguments O’Rourke uses against conservative Christians now are the arguments used against gays then).

And I’ve also published a new piece at The Bulwark on the legal arguments about whether the 1964 Civil Rights Act’s reference to “sex” should be construed to include sexual orientation and gender identity, a move I call “surprise plain meaning” and which is by no means unprecedented in the Supreme Court’s handling of employment discrimination law. More broadly, I examine and reject the notion that for the Court to ponder these questions is to put anyone’s “humanity up for debate.” Earlier on Bostock, Altitude Express, and Harris Funeral Home here, here, here, and here, and more from Dale Carpenter and Scott Shackford. Scott Greenfield responds.

For those keeping track, this makes three pieces I’ve published in two days, counting yesterday’s Wall Street Journal piece, all related to sexual orientation and the law although unrelated otherwise.

Prosecution roundup

  • Let justice be done: conviction integrity units “operate within prosecutors’ offices to investigate old cases for errors or misconduct that may have led to a wrongful conviction.” [C.J. Ciaramella]
  • “Allegation: Georgetown, Ind. man comes home to find his wife and two children killed. He’s detained for 13 years before he’s finally acquitted in a third trial. And this happens because the state lied about an ‘utterly unqualified’ assistant pretending to be a blood-spatter analyst. (The extent of his scientific training was a single chemistry class, which he flunked.) And there’s so, so much more. The state also lied about running a DNA test that could have exonerated the man. The second prosecutor was sanctioned for trying to cash in on a book deal. The first prosecutor ended up representing the real murderer. Click on the link, dear reader, for a shocking civil rights case that the Seventh Circuit is absolutely sending to trial.” [Institute for Justice “Short Circuit” on Camm v. Faith]
  • In the new 2018-19 term Cato Supreme Court Review, Anthony J. Colangelo writes about Gamble v. U.S., the dual-sovereignty double jeopardy case;
  • “Baby’s Death in Mother’s Bed Leads To 5-Year Prison Term. But Was It Her Fault?” [Cassi Feldman, The Appeal]
  • Seattle: “King County Took Money From an Anti-Prostitution Organization. Then ‘Unprecedented’ Felony Prosecutions of Sex Buyers Began.” [Sydney Brownstone, The Stranger last year; more (judge rejects disqualification motion)]
  • So it does happen: court denies prosecutor absolute immunity for withholding exculpatory evidence [Penate v. Kaczmarek, First Circuit]

George Eliot on clients’ demand for lawyers’ ethics

From Scenes of Clerical Life (1857), “Janet’s Repentance,” chapter 2 (paragraph breaks added):

Old lawyer Pittman had once been a very important person indeed, having in his earlier days managed the affairs of several gentlemen in those parts, who had subsequently been obliged to sell everything and leave the country, in which crisis Mr. Pittman accommodatingly stepped in as a purchaser of their estates, taking on himself the risk and trouble of a more leisurely sale; which, however, happened to turn out very much to his advantage. Such opportunities occur quite unexpectedly in the way of business. But I think Mr. Pittman must have been unlucky in his later speculations, for now, in his old age, he had not the reputation of being very rich; and though he rode slowly to his office in Milby every morning on an old white hackney, he had to resign the chief profits, as well as the active business of the firm, to his younger partner, Dempster. No one in Milby considered old Pittman a virtuous man, and the elder townspeople were not at all backward in narrating the least advantageous portions of his biography in a very round unvarnished manner.

Yet I could never observe that they trusted him any the less, or liked him any the worse. Indeed, Pittman and Dempster were the popular lawyers of Milby and its neighborhood, and Mr. Benjamin Landor, whom no one had anything particular to say against, had a very meager business in comparison. Hardly a landholder, hardly a farmer, hardly a parish within ten miles of Milby, whose affairs were not under the legal guardianship of Pittman and Dempster; and I think the clients were proud of their lawyers’ unscrupulousness, as the patrons of the fancy’s are proud of their champion’s ‘condition’.

It was not, to be sure, the thing for ordinary life, but it was the thing to be bet on in a lawyer. Dempster’s talent in ‘bringing through’ a client was a very common topic of conversation with the farmers, over an incidental glass of grog at the Red Lion. ‘He’s a long-headed feller, Dempster; why, it shows yer what a headpiece Dempster has, as he can drink a bottle o’ brandy at a sittin’, an’ yit see further through a stone wall when he’s done, than other folks ‘ll see through a glass winder.’ Even Mr. Jerome, chief member of the congregation at Salem Chapel, an elderly man of very strict life, was one of Dempster’s clients, and had quite an exceptional indulgence for his attorney’s foibles, perhaps attributing them to the inevitable incompatibility of law and gospel.

The standard of morality at Milby, you perceive, was not inconveniently high in those good old times, and an ingenuous vice or two was what every man expected of his neighbor.

Courts to officials: do not insult religions

A federal judge in Michigan has ruled for a Catholic foster-care program, but religious objectors may find it a victory built on sand. I’m in the online Wall Street Journal today with an opinion piece explaining why (paywalled for many readers). Related on Judge Robert Jonker’s opinion in Buck v. Gordon, in which he rebuked Michigan Attorney General Dana Nessel [Sue Ellen Browder, National Catholic Register] and on Fulton v. Philadelphia [Mark Rienzi](and mentions: New York Post, Kathryn Lopez/National Review)

Environment roundup