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?
Environment roundup
- “Ninth Circuit Dismisses Kids Climate Case for Lack of Standing” [Jonathan Adler, more; John Schwartz, New York Times; earlier here, here]
- Administration finishes replacing much-criticized Obama rule on Waters of the United States (WOTUS) [AgInfoNet, WilmerHale, earlier]
- Prop 65 mini-roundup: the California chemical-disclosure regime “has not been shown to provide benefits that justify its high cost.” [Michael Marlow, Cato Regulation magazine last summer] It has also created a $300 million/year industry that includes not a few shakedown artists [Cameron English, ACSH] Take two Tylenol and label them as hazardous chemicals or else [Masha Abarinova, Reason] Gas utility’s Prop 65 insert warning of exposure to, yes, natural gas [SoCalGas] From Cal Biz Lit, lists of 2019 settlements and consent judgments;
- Forcing insurers to renew risky policies: “California Politicians Double Down on Encouraging People To Live in Wildfire-Prone Areas” [Christian Britschgi]
- Exchange on the Price-Anderson Act and the liability regime it creates for nuclear power generation [John Cochrane; Tyler Cowen, Marginal Revolution] “Germany’s closing of nuclear power stations after Fukushima cost billions of dollars and killed thousands of people due to more air pollution.” [Alex Tabarrok]
- Two Cato Daily Podcast episodes hosted by Caleb Brown: why scaling back National Environmental Policy Act review of infrastructure projects “won’t have much of an impact on environmental quality.” [Peter Van Doren] Should Presidents wield unilateral power to lock or unlock use of federal land, as is conferred on them under the 1906 Antiquities Act? [Cato Daily Podcast with Caleb Brown and Jonathan Wood]
“Who is better positioned than a superintendent of schools to take a stand on this issue?”
Who, indeed? “School districts are at the head of a cresting wave of litigation against JUUL and other e-cigarette manufacturers, seeking to recover the costs of prevention programs, counseling, and treatment for addicted students. Nearly 100 districts have sued.” [Stephen Sawchuk and Denisa Superville, Education Week]
Schumer backtracks on SCOTUS diatribe, but not far enough
On Wednesday, at a rally on the Supreme Court steps, Senate Minority Leader Chuck Schumer (D-N.Y.) cut loose with a truly amazing diatribe against Justices Neil Gorsuch and Brett Kavanaugh, declaring that the two would “pay the price” and “won’t know what hit you if you go forward with these awful decisions.” Schumer’s menacing if vague comments drew prompt disapproval from a broad range of legal figures, such as the heads of the American Bar Association and New York City Bar Association as well as Democratic SCOTUS shortlister Neal Katyal and Harvard’s Larry Tribe. Chief Justice John Roberts weighed in with a rare public rebuke: “threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.”
Schumer proceeded to dig in and even blast Roberts personally for the criticism. By Thursday, he was ready to concede grudgingly that he “should not have used the words I used. They didn’t come out the way I intended to,” while still staying on the offensive in every other respect and accusing his adversaries of “manufacturing” the uproar.
I’ve got a new post at Ricochet reviewing the controversy, including its much-echoed “what about…?” dimension:
Defenders of Schumer assailed the chief justice for not having weighed on some other inappropriate Trump sallies, including his ill-grounded speculation recently (never filed as an actual motion) that Justices Ruth Ginsburg and Sonia Sotomayor should recuse themselves from Trump matters, and his aspersions on the judge in the Roger Stone case. Those are part of a frequent and blatant Trump habit of trash-talking judges, both as a candidate (calling the judge in the Trump University case “Mexican” and “a hater”) and as President (“so-called judge” among numerous others). Some — I’m one — would say that this is among Trump’s very worst and most damaging patterns of behavior.
But as cooler heads noted, including Ruth Marcus of the Washington Post, the chief justice is not a playground proctor who can step in to write up every demerit; he needs to save his efforts for the instances that are most dangerous, as he in fact has done.
The wider picture, it might be noted, is one in which nasty swipes at judges have been routinized for years, from a range of public figures and also from former President Barack Obama, both in his 2010 State of the Union speech and also repeatedly during the court review of ObamaCare. Still, none of these have gone as far to suggest personal threat as did Schumer — not even the extraordinarily inappropriate amicus brief filed by Sens. Sheldon Whitehouse and four other Senate Democrats last August, assailing the Court’s legitimacy and warning that “restructuring” at the hands of political branches lies ahead if it does not mend its ways.
I conclude that Schumer needs to go back and apologize, seriously this time. And it’s time for all who’ve fallen short of defending judicial independence — Republicans and Democrats alike — to do so. [cross-posted from Cato at Liberty]
Discrimination law roundup
- More boxes get banned: Connecticut measure will ban asking age on job applications [Daniel Schwartz]
- In closely divided en banc ruling, Ninth Circuit rules it cruel and unusual punishment for prison authorities to deny inmate sex-reassignment surgery [en banc opinion and panel decision; Josh Blackman on a dissent authored by Judge Patrick Bumatay; I was quoted last year in public radio coverage of the Adree Edmo case]
- “Fear And Loathing At The Department Of Labor: Has The OFCCP Become A Law Unto Itself?” [Cory Andrews, WLF, more]
- “Look for the Union Label, not the Gender Role” [Sarah Skwire]
- Freedom means freedom for everyone: joined by Prof. Eugene Volokh, Cato files First Amendment amicus brief on behalf of Colorado graphic/web designer who objects to working on same-sex weddings [Ilya Shapiro and James Knight on 303 Creative LLC v. Elenis, Tenth Circuit]
- CBS News misrepresents the state of pregnancy-accommodation law in the workplace [Jon Hyman]
Great moments in public employment: sick leave lasts 22 years
A 62-year old cop in the small Rhode Island town of Warren has finally taken retirement after 22 years on sick leave. Legal wrangling went on over that period, during which the police detective could “receive his full pay and benefits, but never come to work.” He pointed to a state law guaranteeing full pay and benefits to officers injured on the job until they return to work. Warren has just 22 cops on its force and felt his approximate $114,000 in salary and benefits to be a burden. [Parker Gavigan, NBC 10 News]
NYC: products and promotions in commerce must be sensitive to protected groups
The New York City Commission on Human Rights, which not long ago declared an employer or landlord’s use of the term “illegal alien” to be a form of illegal discrimination punishable by a fine of up to $250,000, is now negotiating with companies to obtain legal remedies over promotions and product designs it deems insensitive to protected groups. Among its targets have been fashion lines Prada, Gucci, and Christian Dior, over displays and designs charged with having referenced blackface or “perpetrated Native American stereotypes.” [Vanessa Friedman, New York Times] Robby Soave, Reason:
Prada’s signed agreement with the commission is incredible. The company will put all New York store employees—and company executives in Milan—through racial sensitivity training. Prada will also appoint a diversity and inclusion officer, subject to the commission’s approval. This person will be tasked with “reviewing Prada’s designs before they are sold, advertised or promoted in any way in the United States,” according to the terms of the agreement.
March 4 roundup
- Educated Canadian circles have politely indulged theories about how indigenous sovereignty is purer and more legitimate than so-called settler government. Ten thousand land acknowledgments later, comes the reckoning [J.J. McCullough, Washington Post] Read and marvel: “As lawyers and legal academics living and working on this part of Turtle Island now called Canada, we write to demand…” [Toronto Star; similarly, David Moscrop, Washington Post]
- Plaintiff’s lawyers in talc case played footsie with Reuters reporters: “Judge Sanctions Simmons Hanly for ‘Frivolous’ Disclosure of Johnson & Johnson CEO’s Deposition” [Amanda Bronstad, New York Law Journal]
- Bernie Sanders’ disastrous rent control plan [Cato Daily Podcast with Ryan Bourne and Caleb Brown] Housing construction unwelcome unless public? Vermont senator boosts opposition to East Boston plan to build mix of 10,000 market and affordable new homes on defunct racetrack [Christian Britschgi]
- Happy to get a request from Pennsylvania to reprint and distribute my chapter on redistricting and gerrymandering, found on pp. 293-299 of the Cato Handbook for Policymakers (2017). If you’re interested in the topic, check it out;
- Family courts deciding the future of a child commonly don’t take testimony from foster carers. Should that change? [Naomi Schaefer Riley/Real Clear Investigations, quotes me]
- Supreme Court will not review Ninth Circuit ruling that Eighth Amendment’s prohibition on cruel and unusual punishment prohibits city of Boise from enforcing law against homeless encampments when there are insufficient beds available in shelters [Federalist Society teleforum and transcript with Andy Hessick and Carissa Hessick]
“Reforming the Community Reinvestment Act”
“Some proposed reforms to the Community Reinvestment Act come directly from research conducted by Cato’s Diego Zuluaga. He describes why, short of getting rid of the law, reform is so essential.” [Cato Daily Podcast with Caleb Brown]