- 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]
Laws on hate crimes raise longstanding questions of fairness both in theory and application, including (when enacted at the federal level) dangers of overextension of federal criminal law and inroads on the prohibition against double jeopardy. The role of hate crimes as culture war rallying points can make things worse. In the Jussie Smollett episode, journalists came under fire for raising questions about unlikely elements of the actor’s story — Smollett had been “doubly victimized as the subject of speculation by the media industry and broader culture,” said the head of one progressive outfit — and even for hedging their stories about with words like “allegedly.”
After Smollett’s story fell apart, some advocates argued that no matter what might have happened this one time, data show that hate crimes are sharply on the rise and reports of them hardly ever prove unfounded. Is that the case? I tackle the question in a new piece at Inside Sources
An oft-repeated talking point is that FBI statistics last year, to quote Sen. Kamala Harris (D-Calif.), “revealed a 17 percent increase in the number of hate crimes in America.”
Let’s be polite and say those FBI figures are difficult to interpret….
In the state of Oregon, the college town of Eugene reported 72 hate crimes to the FBI in 2017, about as many as the rest of the state put together. According to the Daily Emerald, the difference reflects “the city’s active approach. … The city carefully catalogs reported instances … and even classifies certain crimes — such as vandalism — as a hate crime that other cities would classify in a different way.”
Word is that the Eugene approach is spreading as other cities get interested in steps such as asking officers to write up on their own initiative as a hate incident a graffiti epithet they might see, rather than only if a public complaint happens to come in.
Should those methods spread in coming years, the FBI count of reported hate incidents is sure to mount — yet still not demonstrate with any certainty a genuine rise.
For whatever reason, many of us are predisposed to accept findings that seem to highlight the prevalence of terrible injustice. The impulse to believe extends to matters of scholarship. So it was with a recently retracted 2014 study that purportedly found “structural stigma” in society shortens the lives of LGBT persons by a remarkable 12 years. The authors acknowledged that they had inadvertently committed a coding error with the data; once it was corrected, there was no statistically significant correlation at all between “structural stigma” and mortality. Yet the paper, with its inherently implausible findings, had already achieved “highly cited paper” status, and has continued to garner citations even after its retraction.
More: David Kopel 2003 (recommending stronger penalties for the perpetration of hoaxes).
Moving rapidly through Congress with bipartisan backing: “a new bill modeled after a federal hate crime statute would make it a crime to intentionally target a law enforcement officer based on his ‘actual or perceived status’ as one.” [Emanuella Grinberg, CNN]
I argued in 2015 that this idea is a very bad one, as well as unneeded, even at the state and local level. Beyond that, doing it as a federal enactment is of dubious constitutionality [Ilya Somin] More: office of Sen. Orrin Hatch (quoting Fraternal Order of Police chief Chuck Canterbury on bill’s being “modeled after the federal hate crime statute”). Killings of police in the line of duty declined last year and are at far lower levels than in the 1970s and 1980s, setting 50-year lows by some standards.
- Bill advancing in California legislature would authorize jail for nursing home staff who “willfully and repeatedly fail to use a resident’s preferred name or pronouns” [Eugene Volokh, SB 219]
- “The FDA cannot get out of its own way on the issue of off-label communications.” [Stephen McConnell, Drug and Device Law Blog first and second posts]
- Public health covets territory of other studies and disciplines, part CLXXII [British Medical Journal on American College of Physicians’ resolution declaring “hate crimes” and “legislation with discriminatory intent” to be public health issues]
- Podcast on battle between Vascular Solutions and the FDA [Federalist Society with Howard Root and Devon Westhill]
- Policy U-turns needed: “Deregulation and Market Forces Can Lower Pharmaceutical Prices” [Marc Joffe, Reason]
- Florida Supreme Court ignored market history in striking down noneconomic damages limits in medical malpractice awards [Robert E. White, Jr., Insurance Journal and Andrew S. Bolin, WLF on North Broward Hospital District, et al v. Kalitan]
- Citation nation: abuse of fees and fines erodes legitimacy and accountability in local government [C. Jarrett Dieterle, City Journal]
- If concept of obstruction of justice is not to do injustice itself, it must be confined to a limited number of well-defined offenses [Tim Lynch, Cato]
- “Drug recognition experts” deployed at traffic stops have a reliability problem, and that can put innocent people behind bars [11Alive Atlanta, Ed Krayewski] Zero-tolerance THC: Unimpaired driver gets six months for fatal crash she did not cause [Jacob Sullum]
- New York Senate approves bill to make police protected group for purposes of hate crime law; similar proposals have become law in Louisiana, Kentucky, and Mississippi [Tim Cushing/TechDirt, earlier here and here]
- Now renamed “trafficking”: “Why Governments Always Exaggerate the Prostitution Threat” [Camilo Gómez, FEE, related Libertarianism.org podcast with Elizabeth Nolan Brown]
- Some problems with requiring “racial impact statements” for new bills on criminal justice [Roger Clegg and Hans von Spakovsky, NRO, James Scanlan, Federalist Society blog]
A police union’s national campaign continues to bear fruit as Gov. Matt Bevin signed a bill making Kentucky the second state, after Louisiana, to include police as a protected group in hate crime law. For principled conservative opponents of hate crime laws as a category, now would be a good time to speak up, wouldn’t it? [Beth Reinhard, WSJ] Such “Blue Lives Matter” bills continue to be introduced elsewhere around the country at both state and municipal levels [Julia Craven/Huffington Post, Tim Cushing/TechDirt]
- Congress’s enumerated powers don’t extend to making this local bar fight a federal hate crime [Ilya Shapiro on Cato brief in United States v. Metcalf, Eighth Circuit]
- On this point, at least, history’s verdict went with President Andrew Johnson: Congress can’t entrench Cabinet officers if the President no longer wants them to serve [Mental Floss]
- “Video: Ilya Shapiro on judicial abdication and the growth of government” [Acton Institute]
- “Our decision is about the First Amendment, not the Second.” Eleventh Circuit en banc strikes down Florida law restricting doctors’ speech with patients about guns [Eugene Volokh; quote is from Pryor concurrence in Wollschlaeger v. Governor]
- In the mail: paperback reissue of Michael Stokes Paulsen and Luke Paulsen, The Constitution: An Introduction [Basic]
- “Federal Appeals Court Nixes Blanket Drug Screening of State College Students” [Jacob Sullum]
On “Blue Lives Matter” sentence enhancement, floated as a national idea in one of President Donald Trump’s three executive orders last week on crime, the feds really have no business meddling when local legal systems are appropriately vigorous in prosecuting and punishing a category of offense, as is ordinarily true of injuries to police [Jonathan Blanks, Cato] More views on the executive orders: Tim Lynch/Cato, Harvey Silverglate via Anthony Fisher.
P.S. Some reasons conservatives who favor enhanced penalties for attacks on first responders should oppose using “hate crime” dodge to do so [John Bicknell/Washington Examiner, thanks for quote]
- “Louisiana Police Chief: Resisting Arrest is Now a Hate Crime Under State Law” [C.J. Ciamarella, earlier on so-called Blue Lives Matter laws here, here, etc.]
- Agency interpretive letters are the wrong way to enact new federal law [Ilya Shapiro and David McDonald on Cato amicus in school bathroom case, Gloucester County School Board v. G.G.]
- “Thousands of business threatened by ADA lawsuits” [Justin Boggs, Scripps/NBC26]
- “Reforming The Administrative State — And Reining It In” Hoover Institution panel with Adam White, Oren Cass, and Kevin Kosar, moderated by Yuval Levin [video, related Adam White paper, “Reforming Administrative Law to Reflect Administrative Reality”].
- New Hampshire: “Wal-Mart told to pay pharmacist $16 million for gender bias” [Reuters]
- Congress seldom has acted as if it believed strongly in D.C. home rule and it’s unlikely to start now [Ryan McDermott, Washington Times, thanks for quotes]
- Another day, another lawsuit charging a social media company with material support for terrorism. This time it’s Twitter and IS attacks in Paris, Brussels [Benjamin Wittes, Lawfare; Tim Cushing, Techdirt] More: And yet another (Dallas police officer versus Twitter, Facebook, and Google; listed as one of the filing attorneys is 1-800-LAW-FIRM, no kidding, complaint h/t Eric Goldman);
- “Woman Sues Chipotle for $2 Billion for Using a Photo of Her Without Consent” [Petapixel]
- “Hot-Yoga Guy and His Cars Are Missing” [Lowering the Bar, earlier]
- From Backpage.com to unpopular climate advocacy, state attorneys general use subpoena power to punish and chill [Ilya Shapiro]
- Dept. of awful ideas: California assemblyman proposes registry of hate crime offenders [Scott Shackford]
- But oh, so worth it otherwise: “Not one Kansas state senator is a lawyer, making compliance with obscure statute impossible” [ABA Journal]