- NYC: “Restaurateurs Are Scrambling to Cut Service and Raise Prices After Minimum Wage Hike” [M. Tara Crowl, Eater NY via Mark J. Perry, AEI, who has more] Next step for SEIU in New York: demand for laws prohibiting firing of fast food workers without “good cause” [Patrick McGeehan, New York Times, Billy Binion, Reason]
- In “the popular discourse that all that matters are ‘jobs,’ as if it were 1933, not the vast range of the terms of employment — how hard you have to work, hours, tasks, flexibility, side benefits, overtime, and so forth.” [John Cochrane recommending Jonathan Meer draft via David Henderson]
- As the late Paul Heyne taught, economics “contributes to questions of justice – because it imposes the constraints of reality, and because it reminds us that the ethics appropriate for a family cannot work in a commercial society (without lapsing into authoritarian paternalism).” [Nikolai Wenzel]
- Treatment of tipped workers in minimum wage laws responds to political pressures [Richard Mackenzie, Regulation magazine]
- Workers search more for employment at right around the time of a minimum wage increase, but the effect does not last [Camilla Adams, Jonathan Meer, and CarlyWill Sloan, Cato Research Briefs in Economic Policy]
- “Do Minimum Wage Increases Raise Crime Rates?” [Ryan Bourne on NBER paper by Zachary Fone, Joseph Sabia and Resul Cesur]
May 1 roundup
- U.K.: Whole Earth 3 Nut Butter recalled for not displaying a “contains nuts” warning on the jar [Katie Morley, Telegraph]
- “Community College Reportedly Bans Pro-Second-Amendment Banner with Picture of Rifles” [Eugene Volokh]
- More on the dubious “hate crimes have surged” narrative, from Will Reilly of Kentucky State, who has a new book out [Nolan Finley, Detroit News, earlier]
- In Lamps Plus v. Varela, Supreme Court rules courts should not read class arbitration mechanisms into arbitration agreements that do not explicitly provide for them [Morrison & Foerster; Joshua Dunlap, Pierce Atwood/JD Supra; Charlotte Garden, SCOTUSBlog] More: Federalist Society teleforum with Prof. Henry Allen Blair:
- “Judge tosses law firm’s suit seeking $9.75 million bonus fee in Chicago divorce case” [ABA Journal]
- Hot courtrooms and immigration judges: “A 10°F degree increase in case-day temperature reduces decisions favorable to the applicant by 6.55 percent. This is despite judgments being made indoors, ‘protected’ by climate control.” [Anthony Heyes and Soodeh Saberian via Tyler Cowen]
Eugene Volokh on anti-libel injunctions
Injunctions against committing libel are one of the important exceptions to the general principle that the government cannot restrain your speech ahead of time, as distinct from prescribing legal consequences that might apply to it afterward. Eugene Volokh is serializing at Volokh Conspiracy some of the main points of a new article he has published in the Penn Law Review that draws a close connection between anti-libel injunctions and another anomaly of speech regulation, criminal libel (which departs from the general modern rule that legal consequences for unjust harm to reputation are generally civil and compensatory). He writes:
An injunction against libel, which carries the threat of prosecution for criminal contempt, is like a miniature criminal libel law—just for a particular defendant, and just for statements about a particular plaintiff. That is its virtue. That is its danger. And that is the key to identifying how the First Amendment and equitable principles should constrain such injunctions.
Injunctions themselves can be divided between permanent injunctions entered after a civil trial on the merits has found earlier speech to be libelous, and preliminary injunctions entered before there exists such a record. The two types of remedy have different potential dangers. The criminal libel comparison makes clear some of the other problems that can arise with libel injunctions, which include overbreadth and the lack of an equivalent of prosecutorial discretion.
Multi-district litigation: time for real rules
A milestone was reached in March: over half of all cases “currently open in the federal judicial system now are contained in multi-district litigation.” [James Beck, Lexology] And that poses a problem if you believe in uniform, stable, and knowable procedures for handling cases:
As we’ve discussed many times before, the ordinary Federal Rules of Civil Procedure apply sporadically, if at all in MDLs. Likewise, some MDL judges apply Daubert rigorously, and others do not. Some MDLs are disposed of on the basis of federal preemption, while other MDL judges seem never to have granted a preemption motion in their careers. Appellate opportunities are few and far between, and almost always arise when plaintiffs lose, since defense losses don’t generate immediately appealable orders. The current MDL system makes the federal judicial system resemble the baroque Holy Roman Empire – an agglomeration of hundreds of feudal principalities, feigning allegiance to one set of laws, but in reality operating more or less independently – with some of those margraves and palatine counts wielding rather despotic power.
Like some wasps do to caterpillars, agglomerations of “plaintiff steering committees,” assisted by shadowy funded media solicitors, have parasitized the federal judicial system, converting it into a system not for justice, but for converting mass solicitations into mass settlements without the merits of 99+% of the filed “inventory” ever being examined.
And because of the rise of the defendant technique known as “pre-service removal,” Beck says, the share of cases in MDLs is likely to rise further.
Campus speech roundup
- At UCLA as elsewhere, pledges and obligatory statements about diversity threaten academic freedom [Robert Shibley, Minding the Campus, Paul Caron/TaxProf, Christian Schneider, New York Post, earlier]
- 2019, 1673, whatever: By calling ourselves “inclusive,” Cambridge explains, we mean “there is no place here for” those who fail to accept key tenets of faith and morals [Robby Soave] He “had just chosen to move from Australia, the country where he earned his degrees and spent most of his career, to China. Why? Because, as a researcher, he has more freedom in China.” [Peggy Sastre, Quillette] Heresy hunts in American academia aren’t exactly new, consider what happened fifty years ago to once-lauded “culture of poverty” anthropologist Oscar Lewis [Bryan Caplan]
- Remarkable glossary of terms “intended to structure and referee conversations on campus” circulates at Amherst College, whose Office of Diversity and Inclusion has a staff of 20, more than one for every hundred of the institution’s 1800 students [Rand Richards Cooper, Commonweal via Christina Sommers] University of Michigan has at least 82 full-time diversity officers at payroll cost of $10.6 million, a sum would cover full in-state tuition for 708 students [Mark Perry on Twitter] At the University of Texas, diversity-related staffers cost $9.5 million annually [Derek Draplin, College Fix]
- Some conservatives do their bit to undermine academic freedom when they try to get professors fired for bad speech unrelated to teaching and scholarship [David French, Robby Soave]
- Law schools debate whether to be even more ideological, although the product of the academy is supposed to be knowledge rather than activism [John McGinnis responding to Samuel Moyn] Outcry after Emory Law School suspends professor who had uttered racial slur in context of critically describing others as using the slur [Paul Caron/TaxProf, more]
- Rhode Island student drummed out of state college for not advancing “value of social and economic justice” can take his case to a jury, rules state’s high court; Cato Institute had filed amicus brief on his behalf [Ilya Shapiro and Patrick Moran]
“The Twenty-Six Words That Created the Internet”
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (Section 230 of the Communications Decency Act of 1996).
Those 26 words (and not a member of Congress) invented the internet as we know it. These words protect internet platforms from lawsuits based on user-generated content, allowing them to open their doors to a dizzying variety of sentiment and speech. Absent that sentence, social media platforms would have strong incentives to suppress any speech that might cause them legal woes. Or, in contrast, they might avoid legal liability by not moderating their forums at all, likely rendering them unusable. Jeff Kosseff tells the story of the institutions that flourished as a result of this powerful statute. He introduces us to those who created CDA 230, those who advocated for it, and those who were involved in some of the most prominent cases decided under the law. As section 230 and the platforms it protects face increasing scrutiny, Twenty-Six Words demystifies this little-known yet vital statute.
Commenting at the Cato forum for Jeff Kosseff and his book were: David Post, former professor of law, Temple Law School; Emma Llansó, Center for Democracy and Technology; and Cato’s John Samples as moderator.
More: Nick Gillespie, Reason (conservatives, liberals on Capitol Hill both turning against Section 230). And Eric Goldman has written recently about how the First Amendment is by no means a dependable backstop should incursions on Section 230 widen speech liability, and how the FOSTA law, which curtailed some Section 230 protections in the name of combating sex trafficking, is unlikely to achieve much toward that goal even as it prepares the way for further incursions on online liberty.
Florida assignment of benefits reform heads to governor
The Florida legislature has passed, and Gov. Ron De Santis indicates he will sign, a bill reforming the operation of the policyholder feature known as assignment of benefits (AOB), widely criticized for encouraging inflated claims and tactical filings meant to obtain lawyers’ fees. [Amy O’Connor, Insurance Journal] In anticipation of likely savings, state-owned insurer of last resort Citizens Property Insurance Corp. has scaled back a 25 percent requested rate increase to 10 percent. [The Insurer] Earlier on assignment of benefits here and here.
Climate change and energy roundup
- France and Sweden rapidly decarbonized their electric grid while continuing economic growth by going nuclear. Why don’t we? [Joshua Goldstein, Staffan Qvist and Steven Pinker, New York Times]
- Washington state appeals court rules “valve turner” activist entitled to present “necessity defense” arguing that “he had no choice but to break into a pipeline facility to save the planet from global warming” [Daniel Fisher, Legal NewsLine]
- Are Canadian climate suits losing steam? [Todd Shepherd, Free Beacon; Stewart Muir, Toronto Sun]
- On fuel blend mandates: “The only good reason for making corn into ethanol is for whiskey.” [Glen Whitman via David R. Henderson, EconLib]
- “Percolating in Washington State: Export-Terminal Permit-Denial Suit Implicates Federalism and Foreign Commerce” [Donald Kochan and Glenn Lammi, Federalist Society, related podcast]
- “Inflicting mass economic harm today in the hope of averting an unknown amount of environmental harm tomorrow is a leap of faith. … It’s not that the cities [filing climate suits] are necessarily wrong; it’s that they can’t know what they claim to know.” [Corbin Barthold, WLF]
April 25 roundup
- Man evicted from lodgings abandons his ailing fish. A suitable case for criminal prosecution? [Carissa Byrne Hessick; Clint Bullock and Chelsea Donovan, WECT]
- Guardianship and public administrator abuses will be one topic of elder abuse task force announced by Michigan attorney general [Beth LeBlanc, Detroit News]
- “Red Flag Law is sort of like the Department of Pre-Crime from the movies” [Cato Daily Podcast with Dave Kopel and Caleb Brown on emergency gun confiscation proceedings; related, Kopel testimony via Cato, earlier]
- “Man sues parents for getting rid of his vast porn collection” [Associated Press]
- Three candidates vie to replace long-serving Jim Hood: “AG candidate [Mark] Baker says Mississippi should end its alliance with private lawyers” [Brian Brueggemann, Legal NewsLine]
- “Is It Time to Revisit the Constitutionality of Unauthorized Practice of Law Rules?” [Michael Rosman, Federalist Society]
“Chalking tires constitutes unreasonable search, 6th Circuit rules”
“Parking enforcement officers in Saginaw, Michigan, who use chalk to mark the tires of cars to track how long they have been parked are violating the constitution, a federal appeals court ruled Monday.” [Amanda Robert, ABA Journal] In particular, the court found that chalking was a trespass and a search meant to obtain information that was not reasonable under a probable-cause or community-caretaker standard, nor under an exception allowing orderly regulation of road traffic, since in the court’s view it was aimed primarily at obtaining revenue rather than mitigating public hazard. Orin Kerr has more analysis at Volokh Conspiracy.
Update, from Orin Kerr: “The Sixth Circuit has issued an amended opinion in the chalking case clarifying the limited scope of its holding.” Quoting the amended opinion: “Taking the allegations in Taylor’s complaint as true, we hold that chalking is a search under the Fourth Amendment, specifically under the Supreme Court’s decision in Jones. This does not mean, however, that chalking violates the Fourth Amendment. Rather, we hold, based on the pleading stage of this litigation, that two exceptions to the warrant requirement — the ‘community caretaking’ exception and the motor-vehicle exception — do not apply here. Our holding extends no further than this. When the record in this case moves beyond the pleadings stage, the City is, of course, free to argue anew that one or both of those exceptions do apply, or that some other exception to the warrant requirement might apply.”