“You are in breach of condition 15.4(c) of your agreement with PayPal Credit,” the letter said, “as we have received notice that you are deceased.” Not only that, it continued, “[t]his breach is not capable of remedy.” Despite the recipient’s status as no longer living, the letter included an instruction to “READ THIS NOTICE CAREFULLY.” [Kevin Underhill, Lowering the Bar; Leo Kelion, BBC]
Summer is here and with it two opportunities to join us as a guestblogger for a week of posting, beginning as early as next week. Authors of newly published books and scholarly work in our fields of interest are particularly welcome. If you’re interested, contact editor – at – overlawyered – dot – com.
MGM Resorts, which operates the Mandalay Bay hotel casino in Las Vegas, has invoked a law passed by Congress in the wake of the Sept. 11 attacks to ask for a ruling that it is not liable to more than 1,000 victims of the Oct. 1, 2017, massacre during which a gunman in a Mandalay Bay room killed 58 people and injured nearly 500. The Support Anti-Terrorism by Fostering Effective Technologies (SAFETY) Act of 2002 limits claims against some makers of security equipment and sends lawsuits against such firms by terror victims to federal court. According to a critic, MGM is taking a broad view of the law’s provisions, claiming its protection because it employed a security vendor with SAFETY Act certification and because the shooting was an act of “mass violence.” The U.S. Department of Homeland Security “has not designated the Las Vegas shooting a terrorist attack.”
The use of declaratory judgment and similar processes, familiar from fields like insurance law, can lead to public relations damage, especially if aimed at parties minding their own business who had not filed a claim or action and might never have done so. It is not clear from coverage how many of the 1,000+ persons named in MGM’s legal filings had evinced no intent to file claims or suits; a suit against MGM was filed last November on behalf of 450 victims. [Jason Tashea, ABA Journal; Rachel Crosby, Las Vegas Review-Journal]
- Protected class designation as departure from viewpoint neutrality: D.C. council proposal would make support for (but not opposition to) abortion a discrimination-law protected category in health care employment [Abortion Provider Non-Discrimination Amendment Act of 2017, Bill 22-0571, via Katie Glenn, Washington Examiner]
- You’ve heard of space junk, here’s statutory junk [David Schoenbrod, Cato Regulation magazine]
- “The Regulation of Language”: “countries that adopt a planned order approach to language, also do so in their law, and similarly rely on a planned order approach in their economy” [Yehonatan Givati, Journal of Law and Economics forthcoming/SSRN]
- “You typically don’t think of pizza chains as being recipients of government bailouts, but in a sense, that’s what happened here.” [Dan Lewis, Now I Know, cheese promotion]
- Federal judge in Southern District of Mississippi wants race and gender hiring set-asides for legal work in receivership case, which is not fair to victims of Ponzi scheme whose interests are under care [Scott Greenfield]
- Trademark claims on “Ruby Tuesday,” who can hang a name on you? [Timothy Geigner, TechDirt]
Three years ago I took a critical view of the trend in many states and cities toward excluding from publicly funded adoptive placement of kids in public care relatively conservative religious agencies that decline to handle placements to families outside their belief group, to non-traditional families such as same-sex couples and single parents, or both. In recent years the ACLU and like-minded groups have stepped up the pressure with lawsuits in states like Michigan aimed at excluding these groups from access to public money unless they take all kinds of families.
Now a bill called the Child Welfare Provider Inclusion Act (H.R. 1881/S.B. 811), passed by the House of Representatives as a rider on the pending Labor/HHS appropriations bill, would prohibit states from taking adverse action against foster care and adoption agencies on the grounds that they refuse to engage in referrals, placements or other services that conflict with their religious or moral convictions. States found to have violated the rule would be subject to loss of 15 percent of their federal child welfare funding. The rule broadly prohibits “discriminating or taking an adverse action against” agencies and would give agencies broad legal remedies including attorneys’ fees.
I haven’t had a chance yet to review all the details of the bill, which in any case would need approval of the Senate and President before becoming law. The Ethics and Religious Liberty Commission of the Southern Baptist Convention (ERLC) and U.S. Conference of Catholic Bishops have papers in favor of the measure and Human Rights Campaign against.
In the mean time a well reported, balanced piece by Gillian Friedman on the controversy mentions tomorrow’s (Thursday’s) Cato conference in D.C. on adoption policy [Deseret News; more/related, Bobby Ross, Jr., Religion News Service in March] The panel on this subject leads off the conference, and includes Assistant Professor Stephanie Barclay of the J. Reuben Clarke School of Law at Brigham Young University; Sarah Warbelow, Legal Director at the Human Rights Campaign; Prof. Robin Fretwell Wilson of the University of Illinois College of Law; and me.
- “Why It Was Proper (and Necessary) to Overturn Old Precedent” [Ilya Shapiro and Aaron Barnes, Cato, earlier on Janus v. AFSCME case]
- Mackinac Center has launched national exit-encouraging campaign [My Pay My Say] Class action suits in several states against government unions seek refund of fees paid [Bill McMorris, Free Beacon]
- Proposal to have public employers simply pay unions directly could eliminate workers’ choice in the matter [Benjamin Sachs and Sharon Block, Vox (favoring idea); Eugene Volokh]
- “California’s Government Unions Take Steps to Obliterate Janus Impact” [Edward Ring, California Policy Center, earlier on California aftermaths]
- “How NY will thwart Janus rights” [Ken Girardin, Empire Center; Eric Boehm; earlier on evasion] When right to work came in, “Michigan unions didn’t simply refrain from identifying the exits. They actively worked to make leaving difficult and onerous.” [Joseph G. Lehman and John R. LaPlante, USA Today]
- And now for something completely different: “After Janus, Conservatives and Teachers’ Unions Should Collaborate” [Max Eden; Erica L. Green, New York Times on how American Federation of Teachers is coping with decision]
A noteworthy podcast: I join Dr. Saurabh Jha [@RogueRad on Twitter] for an lengthy discussion of how American tort and medical malpractice law has changed over the past century, similarities and differences with Britain, how ethics in the legal field stacks up against ethical trends in medicine and the pharmaceutical business, contingency fees, the successes and shortcomings of legislated tort reform, trends in the courts, incentives for medical testing, and much more. It’s all part of Dr. Jha’s podcast series, associated with the Journal of the American College of Radiology. You can listen here.
- Political fight brewing in California over ballot initiative that would pave way for bringing back rent control [Michael Hendrix, City Journal]
- “Metes and bounds” method of describing legal property boundaries has been much derided, but new archival research from American colonial period suggests its benefits then were greater and costs lower than might appear [Maureen (Molly) Brady, SSRN, forthcoming Yale Law Journal] Just for fun: street grid orientation (or lack thereof) in major cities expressed as polar charts [Geoff Boeing]
- “Alexandria, Virginia Gets Housing Affordability Wrong” [Vanessa Brown Calder, Cato]
- Houston does not zone but it does subsidize deed restrictions. Is that good? [Nolan Gray, Market Urbanism]
- Great moments in historic preservation: “Silver Lake gas station moves toward landmark status” but connoisseurs say it’s not nearly as choice as the three service stations previously landmarked in L.A. [Curbed Los Angeles]
- “America’s Ugly Strip Malls Were Caused By Government Regulation” [Scott Beyer]
An earlier cyberbullying bill in New York was struck down by the state’s highest court as in violation of the First Amendment, and now a new version… well, let’s just say that it has free speech problems too, which don’t get conjured away just because a person named in and distressed by speech is a minor [Eugene Volokh, Eric Turkewitz first post with explanatory followup, Scott Greenfield first and second posts, earlier]
More, this time from Michigan, on how guardianship in the wrong hands can turn into a “completely legal, utterly grotesque system for undermining the rights of the elderly,” cutting out kids and legitimate heirs. Last fall the New Yorker ran a chilling investigative piece by Rachel Aviv exposing guardianship abuses in Nevada. [Gretchen Rachel Hammond, Tablet; coverage last October of the Rachel Aziz piece]