- “Freedom of Association Takes Another Hit” as Washington high court rules against florist Barronelle Stutzman [Roger Pilon, Ilya Shapiro, earlier]
- Aside from chipping away at the rule of law, job preservation via presidential threats may not work well as an economic development strategy [David Henderson]
- NYC cops shot burglar in rear end and now he wants $10 million over that [New York Post]
- Granting certiorari in Blackman v. Gascho case would allow Supreme Court to tackle fee abuses in class actions [Ted Frank, Daniel Fisher, earlier]
- Will competing versions be introduced of FADA, the religious-exemption First Amendment Defense Act? [Jessica Yarvin/PBS, I’m quoted; my take on the first introduced version of the bill]
- I talked Sunday with Maryland-based blog radio hosts Ryan Miner and Eric Beasley on topics that included the Gorsuch nomination, Chevron deference, doctor-assisted suicide, and redistricting reform [BlogTalkRadio, one of my longer audio interviews at 1:12:00]
- “Lawyer sues 20-year-old student who gave a bad Yelp review, loses badly” [Joe Mullin, ArsTechnica]
- Gown makers’ associational liberty not to sell to Trump family should also protect florist Barronelle Stutzman [Stephanie Slade/Reason; Eugene Volokh on legal treatment of private discrimination based on political belief or association]
- What to expect from Trump on legal policy: Harvard Law panel with Adrian Vermeule, Cass Sunstein, Andrew Crespo;
- More on new Jonathan Adler book on business and the Roberts Court [Bainbridge]
- Edelson class action firm, discussed here before, files vibrator data privacy suit [Chicago Tribune]
- “Legal Theory Lexicon: Libertarian Theories of Law” [Lawrence Solum]
Of reasons to worry about the Donald Trump administration, so far as I can see, anti-gay policies aren’t in the top 25. Or so I argue in an opinion piece in today’s New York Post. It was written before, but includes an updating reference to, the airing of a “60 Minutes” interview last night in which Trump said, of the Supreme Court’s marriage cases, “They’ve been settled, and I’m fine with that.”
- Prof. Sam Estreicher proposes safe-harbor rule to overcome disincentives to hiring of costly or risky job seekers [SSRN via Workplace Prof]
- “Muslim flight attendant for ExpressJet suspended, wouldn’t serve alcohol” [Detroit Free Press, earlier]
- Profile of lawyer Joel Liberson, who’s talked many cities into suing banks for big bucks under Fair Housing Act [WSJ]
- “Did the 7th Circuit finally kill McDonnell-Douglas?” [Jon Hyman on “burden-shifting” evidentiary framework in employment discrimination law]
- U.S. Commission on Civil Rights believes law should defer to religious conscience claims “only to the extent that they do not unduly burden” bans on discrimination [Stephanie Slade, Reason; report with nonpartisan sections written by Lenore Ostrowsky] Anti-discrimination laws as applied to private actors restrict liberty and sometimes force conscience [David Harsanyi, The Federalist] “Massachusetts: Churches may be covered by transgender discrimination bans, as to ‘secular events'” [Volokh]
- “Unfair ‘Fair Housing’: The new Obama administration policy to ‘deconcentrate’ poverty is a threat to communities” [Howard Husock, City Journal; Kurtz, NRO]
Advancing a trend we’ve been warning about, the University of California, Berkeley, said it may have to take down educational course content posted free online for the benefit of the public due to an ongoing conflict with the U.S. Department of Justice over whether it is obliged to accompany the content with expensive captioning and other technological assists to make it more accessible to disabled visitors. I’ve got a write-up at Cato. More: Robby Soave, Reason; Andrej Karpathy Twitter thread about withdrawal of computer science videos; earlier on web accessibility. And this tweet, from Prof. Sam Bagenstos responding to Soave’s article, represents the culmination of the entire civil rights model.
By 2016, all social divisions had begun to play out as conflicts over cake decoration: “Louisiana Baker Apologizes After Refusing To Make Teen’s Trump 2016 Cake” [Daily Caller]
New ABA rules barring lawyers from displaying bias in selecting partners, experts, and even participants in practice-related social activities based on “socio-economic status” — such as the difference between high- and low-prestige schools? — could bring many of the operations of BigLaw to a grinding halt [Volokh]
Eugene Volokh on troubling implications for speech of the American Bar Association’s new adoption of rules declaring it a professional responsibility violation for lawyers to express bias in various ways, including in the course of “law-related social activities.” More: ABA Journal, Ron Rotunda/WSJ, Stephen Bainbridge.
Libertarian legal scholar Richard Epstein discusses the conflict over religious exemptions to antidiscrimination laws at Hoover “Defining Ideas” and in a related podcast at Acton Institute. He suggests that it might be helpful to refocus the concept of “public accommodations” on businesses held to common carrier principles, typically because of elements of monopoly:
Historically, Title II [of the Civil Rights Act of 1964, with public accommodation provisions] had two potent justifications. The first is that it was a necessary corrective against massive abuses of state power under Jim Crow. Thankfully, that risk is gone today. The other justification was that the traditional common law view — still good today — that any common carrier or public utility, by virtue of holding a monopoly position, was duty-bound to take all customers on reasonable and nondiscriminatory terms. When ordinary people have nowhere else to go for power, water, or transportation, they are entitled to get these services at reasonable rates. The rule covered all cases of racial discrimination, but it was not limited to it.
The implicit drawback of this position was that there was no duty to serve anyone in a competitive industry, precisely because disappointed customers had a full range of alternatives to which they could turn. The common law rightly held that refusals to deal in competitive industries counted as basic liberties.