- “Arizona Could Become the First State to Recognize Occupational Licenses From Other States” [Eric Boehm, Reason] “Making It Easier for Military Spouses To Get Occupational Licenses Could Help All Workers” [same] “Barbers and cosmetologists in Texas warn that repealing mandatory licenses for their professions would be as dangerous as having unlicensed chefs preparing your meals.” Thing is, cooks and chefs aren’t licensed [same]
- Meanwhile, in Congress: “Bipartisan Bill Would Stop States From Denying Occupational Licenses Due to Student Loan Debt” [Boehm again on Rubio-Warren measure]
- “Judicial Sanity on Occupational Licensing and the First Amendment” [Ilya Shapiro and Patrick Moran on Fifth Circuit decision in Express Oil Change v. Mississippi Board of Licensure for Professional Engineers & Surveyors]
- Ohio tackles licensure reform [Nick Sibilla] Idaho too: “Two Governors Kick Off 2019 With Big Occupational Licensing Reforms” [Eric Boehm]
- “Even congressmen can’t pump their own gas in New Jersey” [Simone Pathé, Roll Call]
- “Our results suggest that occupational licensing reduces labor supply by an average of 17–27 percent.” [Peter Q. Blair and Bobby W. Chung, Cato Research Briefs in Economic Policy]
- Lawyer don’ts: Don’t steal your client’s book advance [Rebecca R. Ruiz, New York Times on Michael Avenatti indictment]
- “This isn’t science, it’s witchcraft”: latest verdict against Bayer/Monsanto in Roundup weedkiller/non-Hodgkin’s lymphoma case rests on ultra-loose standards of causation [David Bernstein, related video, earlier]
- Blazing sunset: Idaho legislature fails to reauthorize state’s code of more than 8,000 regulations, which expire. Between now and July 1, Gov. Brad Little “gets to pick and choose which ones to reinstate as emergency regs until legislature meets again.” [James Broughel, Mercatus]
- News blackout on STEM Charter School shooting (Highlands Ranch, Colorado) has judicial origins: entire court file in murder case against older of the two shooters “is ‘suppressed’ from public inspection. This even over the express request of the prosecutor” to have the judge unseal most records [Eugene Volokh]
- Baltimore corruption and development, red flag law, Montgomery Countyites for private toll lanes, Yuripzy Morgan show and more in my latest Maryland policy roundup;
- A point I’ve been making for years about the Electoral College: one of its underrated benefits is in bolstering election integrity by much shortening the list of jurisdictions in which a material chance of fraud might throw overall result into doubt with consequences for legitimacy [Stephen Sachs and followup]
- “Banana Costume Copyright Assailed at Third Circuit” [Emilee Larkin, Courthouse News, earlier]
- In a new piece for The Bulwark, I sort through some comments by presidential candidate Pete Buttigieg critical of identity politics;
- Supreme Court’s decision in Apple v. Pepper, with Justice Brett Kavanaugh joining four liberals, takes a little nick out of Illinois Brick doctrine limiting antitrust suits [my new Cato post]
- Ninth Circuit will soon hear case in which judge ordered Idaho prison system to provide inmate with transgender surgery; I’m quoted saying lower court decision amounted to battle of the experts [Amanda Peacher, NPR/KBSX, plus followup piece (“medical necessity” not a fixed standard, definitions of cruel and unusual punishment hitched in some ways to public opinion) and NPR “Morning Edition”; audio clip]
- “The Moral Panic Behind Internet Regulation” [Matthew Lesh, Quillette] “A Single Global Standard for Internet Content Regulation Is a Recipe for Censorship” [Jacob Mchangama, Quillette] And Jonah Goldberg on right-wing rage at social media platform moderation;
- Some politicos in Britain engage in “‘karaoke Thatcherism’, preaching low-tax, low-regulation mantras divorced from new challenges or detail,” then falling for truly bad ideas like laws to assure real estate tenants indefinite tenure against owners’ wishes [Ryan Bourne]
Do something nice for your neighbors this Christmas and refrain from taking them to court. An attorney who resides in Hayden, Idaho, has gotten into “a miserable four-year war with his neighborhood” over holiday displays at his house [Daniel Walters, Inlander]
- Senators have big plans for government regulation of social media but U.S. Constitution keeps getting in way [John Samples, Cato; David McCabe, Axios, earlier] “Censorship breeds censorship envy, and that’s true of private suppression by massively influential platforms such as Facebook as well as of governmental censorship.” [John Samples, Eugene Volokh]
- Is it lawful for a state lawmaker to block someone on Twitter who’s publicly discussed ways of murdering him? [Dorit Reiss, PrawfsBlawg, earlier]
- European Parliament delays adopting online copyright directive that critics said would result in Internet content filtering and royalties for linking [Thomas McMullan/Alphr, BBC earlier]
- Is the ACLU OK with French catcalling law? [Robby Soave] With using government to keep the wrong sorts of people from owning radio outlets? [Scott Shackford, related]
- Federalist Society telecast on Ninth Circuit decision on Idaho “ag-gag” law with UCLA lawprof Eugene Volokh and Andrew Varcoe of Boyden Gray & Associates;
- “Arrests for offensive Facebook and Twitter posts soar in London” [Sadie Levy Gale, Independent] Downhill in Denmark: “How the Right Abandoned Free Speech in Europe” [Cato podcast and Reason interview with Jacob Mchangama]
The so-called English Rule on legal fees, better termed the rest-of-the-world rule, requires the losing party in a lawsuit to compensate the prevailing party for some of the costs it has laid out having to prove that it was in the legal right. Over centuries around the globe the rule has shown itself consistent with the interests of justice (since it helps to make whole parties whose actions and legal claims were vindicated) and has generally improved incentives in litigation by discouraging speculative claims and defenses, narrowing issues, and promoting settlement.
The organized lawyers of one nation, however, have remained stubbornly resistant to loser-pays: those in the United States. There are, to be sure, some notable exceptions: Alaska has practiced a form of the rule since its days as a territory, and “offer of settlement” variants, invoked after litigants turn down an offer and then do less well at trial, have made some headway lately. Since legislators in several states, especially out West, have shown an interest in promoting the loser-pays principle, you’d think there would be faster progress. Yet such legislative declarations are often foiled when court systems interpret guidance language narrowly or unsympathetically so as to restrict fee shifts to a relatively few outrageous or abusive cases.
That was the situation in Idaho until this fall. Since 1979 the Idaho Supreme Court had followed a rule directing courts to deny fee awards except in cases that were “brought, pursued or defended frivolously, unreasonably or without foundation.” Eight years later, in a 1987 enactment, the state’s legislature declared its intent that “winners in civil cases have ‘the right to be made whole for attorney’s fees and costs when justice so requires,” on the face of it a broader standard. A lot of good that did: for nearly 30 years, the high court in Boise refused to take the hint and stuck with its old standard.
Until now. On September 28, in the case of Hoffer v. Shappard, the Idaho Supreme Court announced that it would at last yield to “the clear intention of the legislature” and adopt, for cases pending as of next March 1, a more generous fee standard. It will recognize that “prevailing parties in civil litigation have the right to be made whole for attorney fees they have incurred ‘when justice so requires’?” and will accord “broad authority to judges overseeing civil actions to award reasonable attorney fees.”
Critics, as well as dissenters in the 3-2 ruling, are predicting the worst. Their concerns are summed up in Betsy Russell’s report in the Spokane Spokesman-Review (which also generously quotes me). As I note, there are genuine risks ahead: experience suggests that courts in a fee-shift system must be on guard to check lawyers’ temptation to gold-plate fee requests, and the high court or legislature should step in to cabin discretion if lower court judges head off in such different directions that fee outcomes start to vary arbitrarily from one courtroom to the next. Loser-pays systems typically develop mechanisms to handle cases of split or partial victories, and Idaho should be prepared to do so as well.
Those important points aside, I’m rooting for the Court’s new approach to succeed, and hoping that Idaho legislators, trial judges, and lawyers will cooperate in coming months to help make that happen.
[cross-posted from Cato at Liberty]
Laws ban things, that’s what they do: Idaho law makes the sport of dog racing a felony, and as a result it’s illegal to race dachshunds, even if it’s all in fun, no money is bet, and the diminutive canines are asked to run only a short distance. [Lowering the Bar]
- Supreme Court’s sleeper case of the term, Reed v. Town of Gilbert, may greatly toughen First Amendment scrutiny of many laws [Adam Liptak, New York Times]
- Authorities to press charges against Washington Post reporter Wesley Lowery and Huffington Post reporter Ryan Reilly, arrested last year in a McDonald’s during Ferguson protests [Newsweek]
- Having said obnoxious things is grounds for exclusion from Canada. Right? [CTV] Related musings about speech that affronts us [Ken at Popehat]
- In case paralleling issues in SBA List v. Driehaus, Massachusetts high court strikes down false-campaign-speech law that enabled incumbent to inflict legal woe on critics; state’s attorney general comes off poorly in account [Ilya Shapiro and Gabriel Latner/Cato]
- Court strikes down of Idaho ag-gag law, and Prof. Volokh notes some parallels to Planned Parenthood covert filming battle;
- Update: city of Inglewood, Calif. not faring well in effort to use copyright law to keep a critic from putting video clips of its council proceedings on YouTube [Adam Steinbaugh, earlier]
- Denver digs itself deeper in charges over leafleting by jury nullification activists [Jacob Sullum, earlier]
And yes, that is gum with an “m” not gun with an “n.” [CNN]
I was preparing a post on the case from Idaho in which husband and wife Donald and Evelyn Knapp have pre-emptively sued (complaint, motion for TRO) to prevent the application of the city of Coeur d’Alene’s public accommodation law from being used to require their wedding chapel business, the Hitching Post, to handle same-sex weddings. In the mean time Andrew Sullivan has done a post pulling together most of what I planned to say, so go read that instead.
Sullivan quotes my observation on Facebook:
I will note that I have learned through hard experience not to run with stories from ADF (Alliance Defending Freedom) or Todd Starnes without seeking additional corroboration. As a libertarian, I oppose subjecting this family business to any legal compulsion whatsoever, but it’s also important (as in the Dallas pastors case) to get the facts straight before feeding a panic.
While I hope the Knapps succeed in establishing their exemption from this law, I am still shaking my head at the ADF’s framing efforts, which via Starnes set off a predictable panic about dangers to religious liberty (see also, last week, on the Houston pastors subpoena). In this instance, those efforts amount to something very akin to hiding the ball, including (as cited by Sullivan) the quiet legal revamping of the business onto a religious basis in recent weeks and the silent removal of extensive language on its website that until earlier this month had promoted the chapel as a venue for civil, non-religious wedding ceremonies.
Now, the Knapps are free (or should be, in my view) to change their establishment’s business plan overnight to one that welcomes only ceremonies consistent with Foursquare Evangelical beliefs. But shouldn’t their lawyers be upfront that this is what’s going on? Especially since even sophisticated commentators, let alone casual readers, are construing the city of Coeur d’Alene’s legal position by reference to what its lawyer said back in May, when the Knapps were running the business the old way. (Back then, as Doug Mataconis notes, coverage included the following: “Knapp said he’s okay with other ministers performing marriages at their facilities but it is not something he will do.” — a position that appears to have changed, again without acknowledgment.)
Let’s be blunt. ADF, which was involved in helping the Knapps revamp their enterprise onto a religious basis, is by the omissions in its narrative encouraging alarmed sympathizers to misread the situation.
Could the city of Coeur d’Alene force the Knapps to provide ministerial officiation of same-sex weddings? As Eugene Volokh explains, in a post based on the initial reports, the clear answer is no, since such compulsion would be an unconstitutional forcing of speech and “would also violate Idaho’s Religious Freedom Restoration Act.”
Besides those two distinct layers of legal protection, they are likely to benefit from a third, noted in this May article in the Spokane Statesman-Review: “religious entities are exempt from the Coeur d’Alene ordinance” and “pastors in the city are not obligated to perform same-sex weddings.” (Todd Starnes links to the Spokane article, but makes no reference to these bits.)
Possibly — the statements of municipal lawyer Warren Wilson in May are ambiguous — the city saw the then-secular Hitching Post as obliged not only to provide the equivalent of a hall rental to same-sex applicants, and sell them silk flowers and other incidentals, but also connect them with an outside officiant sympathetic to their union to pronounce the ceremony. It is by no means clear that the city would apply the same requirements to the Knapps’ newly revamped and far more explicitly religious Hitching Post. It is even more of a stretch to imply, as Starnes does, that the city is on the verge of “arresting” the Knapps.
Even absent any obligation to officiate, it seems to me that a family business in this situation has at least as sympathetic a case as the cake bakers, wedding photographers, invitation engravers, and hall providers who sought exemptions in previous episodes. But really, isn’t our libertarian case strong enough that it can stand on an accurate description of what’s actually going on?
Update: Via Eugene Volokh, Coeur d’Alene’s attorney has now sent a letter making clear the city’s position that even the newly reorganized Hitching Post is subject to the law because the law’s religious exemption covers by its terms “nonprofit” religious corporations, which theirs is not. Volokh argues, I think plausibly, that this position will fail in court if applied to compel the provision of ceremonies because both the constitutional right against forced speech and the state Religious Freedom Restoration Act extend in their application beyond nonprofits. Indeed, the city lawyer’s own letter cites a provision, section 9.56.040, in the city’s anti-discrimination ordinance, stating that the ordinance “shall be construed and applied in a manner consistent with first amendment jurisprudence regarding the freedom of speech and exercise of religion”. This provision would appear not merely to permit, but to require, the city to back off enforcement efforts that conflict with speech and religious freedoms, whether exercised in a non-profit or for-profit setting. The letter — which in its reference to “services” draws no distinction between functions like hall and equipment rental, and expressive ceremonial services — would thus appear to put the city on a collision course with the speech and religious freedoms of the Knapps.
One day later: City says it’s considered the matter further and realizes now that nonprofit status is not required to qualify for exemption. [Boise State Public Radio via Shackford] Quoting BSPR: “The group that helped create Coeur d’Alene’s anti-discrimination ordinance says the Hitching Post shouldn’t have to perform same-sex marriages. The Kootenai County Task Force on Human Relations says in a letter to the mayor and city council that the Knapps fall under the religious exemption in the law.” More coverage: KREM, Boise Weekly, Religion News Service, Sarah Posner/Religion Dispatches (discussing this post).