- “An important win for property owners”: Supreme Court rules 8-0 that protected species habitat doesn’t include tracts containing no actual dusty gopher frogs and not inhabitable by them absent modification [Roger Pilon, George Will, earlier on Weyerhaeuser v. U.S. Fish & Wildlife Service, Cato Daily Podcast with Holly Fretwell and Caleb Brown (“The Frog Never Had a Chance”)]
- Proposed revision of federal Violence Against Women Act (VAWA) would expand definition of domestic violence to include nonviolent “verbal, emotional, economic, or technological” abuse. Vagueness only the start of the problems here [Wendy McElroy, The Hill]
- Bad ideas endorsed by the American Bar Association, part 3,972: laws requiring landlords to take Section 8 tenants [ABA Journal; earlier on “source of income discrimination” laws]
- Minneapolis “Healthy Foods Ordinance” drives up costs for convenience stores, worsens food waste, pressures ethnic grocers into Anglo formats [Christian Britschgi]
- New York Attorney General-elect Letitia (Tish) James has been zealous about suit-filing in recent years, quality another matter [Scott Greenfield]
- “Plaintiff wins $1,000 in statutory damages for technical violation of Fair Debt Collection Practices Act. (Debt collector illegally used the words ‘credit bureau’ in its business name.) After plaintiff’s lawyers seek $130k in fees, district court awards them the princely sum of $0. Fifth Circuit: Just so. While fees are ordinarily mandatory, ‘special circumstances’ obtain here: The record suggests that the plaintiff colluded with her lawyers to generate this ‘outrageous’ fee-heavy lawsuit in Texas instead of in her home state of Louisiana.” [John Kenneth Ross, IJ “Short Circuit” on Davis v. Credit Bureau of the South]
- Newspaper execs who faked circulation numbers ended up copping pleas. Law deans who fudged employment stats don’t need to worry, do they? [Morgan Cloud and George Shepherd via Paul Caron]
- Back in The Excuse Factory I wrote about the unplanned consequences of age discrimination law and the prohibition of automatic retirement ages and it’s nice to see a wider consensus forming even if nothing, absolutely nothing, ever gets done to fix it [Saul Levmore and Martha Nussbaum, WSJ]
- Fair use: “Man who sued over Facebook childbirth livestream slapped with $120k in fees” [Joe Mullin, Ars Technica]
- “Stop Faking Service Dogs: Loving your pet too much is putting people with real disabilities at risk” [Wes Siler, Outside, our tag on service animals] More: Michael Ollove, Stateline;
- Fifth Circuit reverses $663 million Eastern District of Texas False Claims Act award over sale of guardrails to highway authorities [U.S. ex rel. Harman v. Trinity Industries, Mark Curriden/Texas Lawbook, our earlier critical commentary]
- “Why Conservatives Should not Sic Antitrust on Silicon Valley” [John McGinnis, Liberty and Law]
Orin Kerr at Volokh Conspiracy sorts through the complications of a Fifth Circuit case that has arguable Fifth, Fourth, and First Amendment angles.
- “SEAT Act: Top Senators Sponsoring Bill to Outlaw Low Cost Carriers, Raise Airfares” [Gary Leff, View from the Wing]
- “Trump’s Safe and Sane ‘Regulatory Reform’ Idea” [Cass Sunstein/Bloomberg, earlier Sunstein on Trump regulatory initiatives]
- Changing law and economics shape street protest [Tyler Cowen] Arizona’s bad idea on protestors involves racketeering charges, forfeiture, and more [Coyote]
- “Rights And Reality: Georgia Cop Jails Ex-Wife For Facebook Gripe” [Ken White, Popehat]
- “Opponents of same-sex marriage cynically…manufacture[d] a baseless controversy in the Texas Supreme Court” to attack City of Houston’s spousal benefits, but as the Hon. Jerry Smith of the Fifth Circuit had already stated in persuasive guidance, Obergefell “is the law of the land.” [Mark Pulliam, Law and Liberty; a second view from Josh Blackman]
- Idea making some headway: adapting use of class action and similar aggregate litigation procedures to administrative adjudication [Sergio Campos, Jotwell]
Missed this one from 2011, with Judge Jerry Smith writing for a Fifth Circuit panel: “Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court. We find no error and affirm.” [Sanches v. Carrollton-Farmers Branch Independent School District]
Last month we told the story of a Texas business that managed to clobber the U.S. Department of Labor in court over its challenge to the company’s use of independent contractors. The Fifth Circuit granted the company a substantial award in legal fees to punish the department for its bad faith in litigation.
Now, Coyote relates a personal encounter in which he runs into a man at a Houston steakhouse who turned out to be the owner of that company, Gate Guard:
I refused to believe him until he showed me a picture of him with the check. He had had it blown up into one of those huge golf tournament checks. I told him he was my hero and tried to buy him drinks the rest of the night, but when I got up to leave, I found he had actually paid my tab. I drank that evening on the Department of Labor’s dime, I guess.
Was the L.A. Times’s reporting manipulated in hopes of helping federal prosecutors win a case? If so, the effort sure backfired [Ken at Popehat, with commentary on the “too-cozy too-credulous relationship between law enforcement and the press”] And from the Fifth Circuit, also on prosecutorial misconduct: “The online anonymous postings, whether the product of lone wolf commenters or an informal propaganda campaign, gave the prosecution a tool for public castigation of the defendants that it could not have used against them otherwise, and in so doing deprived them of a fair trial.” [ABA Journal]
Tamara Tabo has some choice things to say following judges’ unanimous rebuff to a bogus ethics complaint against Fifth Circuit Judge Edith Jones: “Using professional misconduct proceedings to harm an ideological rival is worrisome. …It was weakly supported, politically motivated, self-serving, and opportunistic. It’s dirty pool.” Among jurists on the panel that recommended dismissal of the complaint was respected D.C. Circuit Chief Judge Merrick Garland, a Clinton appointee [Above the Law, opinion] We cast a dubious eye on the allegations earlier here, here, and here.
Petitioners in the case, to quote the opinion, “include the League of United Latin American Citizens (LULAC); the NAACP (Austin Chapter); the National Bar Association (Dallas Affiliate – J.L. Turner Legal Association); the Texas Civil Rights Project; La Union del Pueblo Entero (LUPE); legal ethics experts, and law professors specializing in judicial ethics.” They should each reflect upon the costs to an independent judiciary of leveling unsubstantiated allegations for political motives. More: Jonathan Adler.
- Pending California bill would impose “affirmative consent” requirement on sex between students at colleges that receive state funding [Elizabeth Nolan Brown/Dish] “New Startup Connects Students With a Lawyer the Minute They Get In Trouble” [The College Fix] Yale vs. wrongly accused males [KC Johnson/Minding the Campus, related on due process] Provision in proposed “Campus Accountability and Safety Act” (CASA) would incentivize fining colleges by letting Education Department’s Office of Civil Rights keep the proceeds [Hans Bader; more on CASA] Idea that campuses are gripped by “rape culture” having wide-ranging effects, even off campus [Bader, Examiner]
- Not only that, but the body was missing: “HS student says he was arrested for killing dinosaur in class assignment” [Summerville, S.C.; WCSC]
- Is Mayor de Blasio really willing to sacrifice NYC select schools like Bronx Science and Stuyvesant in the name of equality? [Dennis Saffran, City Journal]
- Administration trying to hold for-profit colleges to standard few public colleges could meet [WaPo editorial]
- Progress of a sort: UC San Diego “has determined that most projects by historians and journalists need not be submitted to the IRB [institutional review board].” [Zachary Schrag; related speech]
- “At Appomattox County [Va.] High School, the staff spent the summer changing its block-letter ‘A’ logo on everything from sticky notes to uniforms after the licensing agency representing the University of Arizona sent the school a cease-and-desist letter claiming potential confusion among consumers.” [Washington Post Magazine]
- “Fifth Circuit Disobeyed Supreme Court in Allowing Racial Preferences at UT-Austin” [Ilya Shapiro, Cato]
- Note that the pile-up of parking signs at a Culver City school is still “towering and confusing” even in the “after” photo following response to complaints [L.A. Times via Virginia Postrel]
Judge Edith Brown Clement is waving her arms, jumping up and down —- heck, doing everything but setting her office furniture on fire —- to draw the attention of the U.S. Supreme Court to the zany goings on in New Orleans concerning BP (BP) and its oil spill liability. … She probably won’t succeed, but her exertions are both colorful and edifying. …
“The class of people who will recover from this settlement continues to include significant numbers of people whose losses, if any, were not caused by BP,” Clement wrote [in her dissent from an en banc Fifth Circuit rebuff of the oil company]. “Our courts’ decisions would allow payments to ‘victims’ such as a wireless phone company store that burned down and a RV park owner that was foreclosed on before the spill.” Those are real examples she’s pointing to, not law school exam hypotheticals.
“These are certainly absurd results,” Clement continued. “And despite our colleagues’ continued efforts to shift the blame for these absurdities to BP’s lawyers, it remains the fact that we are party to this fraud.” Clement is willing to acknowledge that in its desperation to avoid a trial, the company’s attorneys agreed to a loosey-goosey, uncapped settlement. Maybe those lawyers deserve to be fired. But having created an opportunity for a plaintiffs’ bar feeding frenzy, BP should not be punished by having its corporate treasury ransacked with the approval of the federal judiciary, she added.
Whole thing here.