- More on this to come, but Epic Systems, the workplace arbitration decision, is an epic win for contractual freedom and a big loss for the class action bar [earlier here and here]
- SCOTUS will revisit 1985 Williamson decision, which “makes it very difficult to bring takings cases in federal court.” [Ilya Somin on cert grant in Knick v. Township of Scott, earlier]
- Gorsuch and Thomas: similar originalist methods, which do not always arrive at similar results [Ilya Shapiro]
- “Can Agencies Adjudicate Patentability?” Two views of the recent case Oil States Energy Services v. Greene’s Energy Group [Cato “Regulation,” Jonathan Barnett and Jonathan Stroud via Peter Van Doren]
- “Victory for Defendant Autonomy and the Criminal Jury Trial in McCoy v. Louisiana” [Jay Schweikert]
- Quantitative analysis of amicus brief success at Supreme Court tells many stories, among them the sterling record of the Cato Institute’s amicus program [Adam Feldman, Empirical SCOTUS]
RIP Richard Pipes
The great scholar Richard Pipes, known above all for his work on Russia and the Bolshevik Revolution, has died at 94. In 1999 I favorably reviewed his book on property as an institution, Property and Freedom: The Story of How through the Centuries Private Ownership Has Promoted Liberty and the Rule of Law. I’ve got a new post at Cato pulling together a few highlights of his work on property, along with miscellaneous links.
Free speech roundup
- Who could have guessed? First person charged with violating Malaysia’s new “fake news” law is someone who criticized the police [Reuters/Guardian (“The law covers digital publications and social media and also applies to offenders outside Malaysia, including foreigners, if Malaysia or a Malaysian citizen are affected.”)]
- Or that prosecutors in Spain would be considering hate speech charges against the new separatist premier of Catalonia? [José Antonio Hernández, El País]
- “There is no requirement that a platform remain neutral in order to maintain Section 230 immunity. And Facebook does not have to choose between the protections of Section 230 and those of the First Amendment; it can have both.” [Catherine Padhi, LawFare on comments by Sen. Ted Cruz]
- “Reporting on Lawsuit — but Not Mentioning It Was Settled — Is Not Libelous” [Eugene Volokh on New Jersey Supreme Court decision in Petro-Lubricant Testing Laboratories, Inc. v. Adelman]
- Wisconsin appeals court allows suit against online gun-ad marketplace over shooting; resulting damage to Section 230 would menace social media sites whether or not gun-related [Eric Goldman, Eugene Volokh]
- “Appeals Court Finally Shuts Down Bogus Lawsuit Targeting A School Official For Words A Journalist Wrote” [Tim Cushing, TechDirt, earlier]
Backdoor regulation of consumers, and its political attractions
Government often makes a show of regulating business when its real aim is to regulate what consumers or citizens do. When direct coercion seems “brutal, unfair, and wrong… Switching to indirect coercion is a shrewd way for government to sedate our moral intuition.” Some examples that come to mind: campaigns that at base aim to regulate consumers’ eating and drinking choices instead often take the form of campaigns against manufacturers and sellers of food and drink, who as targets are inevitably less humanized and sympathetic. [Bryan Caplan]
“Sacramento Wants to Boost Rail Ridership By Banning Drive-Throughs and Gas Stations Near Transit”
It’s almost as if making life inconvenient for drivers is seen as a goal in itself: “City staff [in California’s capital city of Sacramento] are drafting an ordinance that would ban building new gas stations, drive-throughs, and other auto-related businesses within a quarter mile of any of the city’s 23 light rail stations. …Other businesses ‘not considered transit-supportive’ — car lots, auto repair businesses, manufacturing sites, wholesale outlets — would still be allowed, but only if the city grants them a special permit.” [Christian Britschgi, Reason]
Department of Justice, state AGs intervene in class action settlements
Dusting off rarely used powers held under the Class Action Fairness Act, the U.S. Department of Justice and some state attorneys general have begun to file in opposition to class action settlements. In a case against defendants Ashburn Corporation and online discount wine retailer Wines ‘Til Sold Out (WTSO), which had already drawn objections from CEI’s Ted Frank, DoJ and AGs from 19 states succeeded in getting some settlement terms rewritten, in a deal then denied final approval by the trial judge, who saw additional problems. [Alison Frankel, Reuters; Perry Cooper, Bloomberg Law and more; Nicholas Malfitano, Legal Newsline] For Arizona Attorney General Mark Brnovich, the wine case was the ninth in which his office had intervened against a class settlement it viewed as unfair [Brnovich press release] “If your state’s AG isn’t joining the briefs of the bipartisan coalition led by Arizona defending consumers against class action abuse, you should be asking their office some tough questions.” [@tedfrank on Twitter]
“Some thoughts on conversion therapy bans”
It’s okay to view “conversion therapy” as worthless quackery yet still have misgivings about the government banning it, I argue [Free State Notes]
Wage and hour roundup
- California Supreme Court ruling on employee classification (Dynamex) expected to deal blow to gig economy [TaxProf, Bloomberg Daily Labor Report]
- Attorney fee request shows part of what’s wrong with Fair Labor Standards Act [Jon Hyman]
- Ninth Circuit: offshore platform workers entitled to hourly pay for 24 hours/day, including time sleeping [WLF on Newton v. Parker Drilling Management Services, Inc.]
- Employees, too: “D.C. gay bars launch campaign against ‘tipped wage’ measure” [Lou Chibbaro, Jr., Washington Blade]
- Study of restaurant employment: “Industry Dynamics and the Minimum Wage” [Daniel Aaronson, Eric French, Isaac Sorkin, & Ted To, Cato Research Briefs in Economic Policy] The “empirical evidence on the effect on minimum wages on employment is mixed. The empirical evidence on the effect of minimum wages on prices is pretty clear—it raises prices.” [Scott Sumner]
- Carceral progressivism: “Rethinking wage theft criminalization” [Ben Levin/On Labor, Terri Gerstein and David Seligman response, rejoinder]
“Pop goes a tradition: county cracks down on free popcorn in hardware stores”
Government is just a word for the things we do together, like cracking down on free popcorn at hardware stores [Peter Rowe, San Diego Union-Tribune]
Liability roundup
- NFL alleges its billion-dollar concussion settlement fund has drawn hundreds of millions in fraudulent claims [Nicholas Malfitano, Penn Record; Andrew Beaton, WSJ]
- After the mass shootings: “We’ve all gotten a thousand phone calls from lawyers.” [Jack Healy, New York Times]
- Retrial in Sheldon Silver corruption case [Bill Sanderson/New York Daily News, more, yet more (guilty on all counts)] “Silver’s disgrace has had no discernible effect on the way Albany conducts the public’s business. And no one should have expected it to, given the record.” [Bob McManus, City Journal] City’s asbestos docket, on which Silver thrived, is still a plaintiff’s playground [Daniel Fisher, more]
- One reason for Illinois’s reputation as a lawsuit hot spot is its willingness to hear disputes from elsewhere [Dan McCaleb, Illinois News Network]
- “Split Pennsylvania court refuses to void $500K award to man burned during ride in crowded limo” [Matt Miller, PennLive]
- Judge tosses lawsuit over McDonald’s Extra Value Meals [Patricia Manson, Chicago Daily Law Bulletin, earlier] “NYC Man Sues Halo Top For Not Being Regular Ice Cream” [Jen Carlson, Gothamist]