- Following election results, lawprofs’ idea of persuading SCOTUS to kill state right-to-work laws is looking kinda dead [James Sherk, National Review] Sixth Circuit panel, reversing decision below, says law authorizes Kentucky counties to enact county-wide right-to-work statutes [Lexington Herald-Leader]
- “Congressional Budget Office: Canceling overtime rule would boost family earnings” [Sean Higgins, Washington Examiner]
- “Another Lesson from Bastiat: So-Called Employment Protection Legislation Is Bad News for Workers” [Daniel Mitchell, Cato citing NBER working paper by Gilbert Cette, Jimmy Lopez, and Jacques Mairesse]
- Claim: lawmakers can “give” private employees paid parental leave and “there’s no added cost to employers” [Kate Ryan, WTOP citing views of Montgomery County, Maryland council member Tom Hucker]
- All California janitors must now take training against sexual harassment, on rationale of preventing rape [L.A. Times]
- A “complicated, highly regulated industry”: “Why Are Companies Abandoning On-Site Day Care?” [Rebecca Greenfield, Bloomberg] And: “Childcare costs skyrocket after minimum wage hike passes” [Alyssa Donovan, KXLY; Spokane, Wash.]
- For thee but not for me? Lawprof proposes immunizing mass tort litigators from RICO liability [Mass Tort Litigation Blog]
- Some reasons, even aside from PLCAA, the Sandy Hook lawsuit against gunmakers is so weak [Jacob Sullum]
- One welcome, overdue development that deserves more attention than we’ve given it: federal courts adopt rules curtailing pretrial discovery [Institute for Legal Reform interview with former Colorado justice Rebecca Love Kourlis; Joe Palazzolo and Jess Bravin, WSJ]
- Cloudy in Texas, with a chance of $1 million lawsuits blaming broken floor tiles on falling objects [Southeast Texas Record via Texans for Lawsuit Reform; Hidalgo County]
- Billboards hawked Kentucky disability practice: “the law has finally caught up with ‘Mr. Social Security.’” [Louisville Courier-Journal]
- Wall Street Journal covers trend of big plaintiff’s firms teaming up with more city governments to file “affirmative litigation” [WSJ] We were on this trend as early as the year 2000 [San Francisco and Philadelphia launch such operations in wake of tobacco settlement). On county governments as cat’s-paws for trial lawyers in lead paint, opioid, and other mass tort cases, see coverage of California’s Santa Clara County here, here, etc., and on Orange County here, here, etc.
On the menu this week at your local restaurant or bakery, you might notice cute wordings like “Famous Horse Race Pie,” “Kentucky Bourbon Chocolate Nut Pie,” or even “We’re Not Allowed To Call This Derby Pie.” In a Cato podcast with colleague Caleb Brown, I explain why, and also mention in passing the aggressive enforcement of the Super Bowl trademark.
One reaction: anti-IP libertarian theorist Stephan Kinsella takes issue with several things I say in the podcast and in particular deplores my intended tone of neutral description of trademark law; he contends that a better position would be to challenge the legitimacy of trademark law and of intellectual property law generally, a view some libertarians have taken.
American University, in Washington, D.C., according to this document from last month, “is undertaking an ambitious plan to modernize the general education experience” with the assistance of a task force whose Nov. 30 report “outlines a dramatically different approach to liberal arts education,” one that includes “sustained attention to issues of equity, diversity, and inclusion.”
The draft of “Reimagining General Education: Toward a New AU Core Curriculum” envisages the following changes:
* All first-years would be obliged in their second semester to take a one- or three-credit course in oppression studies. Sample content: “Students will explore how historical violence, such as the early slave trade and genocidal conquests, shape the contemporary experiences of marginalized groups and struggles for human rights. Class materials will consider how entrenched systems of inequality marginalize some groups and privilege others.” (The draft text describes this as a three-credit course, but at another point says that whether it will be for one or three credits is yet to be determined.)
* “If budget allows,” “all students living on campus” will be housed with the cohort of students with whom they have taken the series of mandatory courses culminating in the oppression course. They will live under upper-class “mentors” and it is envisaged that “student support teams” will emerge from each cohort under the supervision of the mentors.
I wonder whether they will wind up calling these mentored support teams “block committees for the Defense of the Revolution.”
FIRE (the Foundation for Individual Rights in Education) reminds us, citing a University of Delaware episode, that dormitory mentoring in oppression studies goes back a while. Meanwhile — more or less unrelatedly, except that at a higher level it is most certainly related — per this University of Louisville law faculty anecdote, a colleague who told students on the final day of class to “think for yourselves” and that multiple political viewpoints should feel welcome at the school was promptly hauled to account [Russell L. Weaver, Courier-Journal] (& Robby Soave, Reason)
In 2014 the faculty of the Louis D. Brandeis Law School at the University of Louisville voted to commit the institution to “social justice,” and now plans are afoot to rebrand the public institution as the “nation’s first compassionate law school.” If everyone could settle on the same definitions of social justice and compassion, and maybe also agree that those values should trump others, the schools’ direction might look more neutral and scholarly, and less nakedly political. [Luke Milligan, Louisville Courier-Journal] U of L is hardly the first school to go down this path; as I note in my book Schools for Misrule, a number of law schools including some Top 30 institutions have veered off in the same direction in recent years, even before this year’s campus protests furnished considerable new momentum. But see: a second U of L lawprof dismisses the concerns as overblown, and points out that the school’s adoption of the word came in the context of a city-wide campaign in which various leading Louisville businesses and civic institutions had been prevailed on to declare themselves “compassionate.” [Caron/TaxProf]
P.S. If law schools want to jump into explicitly promoting social justice, John McGinnis has a modest proposal for how they might do that.
- Understanding the liberal-conservative gap on what “free expression” means [Ronald K. L. Collins]
- Foes of Yik Yak “want universities to ban the very app that gives marginalized students a voice on campus” [Amanda Hess, earlier] No-platforming: “It is an anti-Enlightenment movement.” [Claire Lehmann on Germaine Greer case] At UCLA, administrators and activists are attacking the core right to free speech [Conor Friedersdorf]
- “If you know what you’re doing, you bring in the litigators before you start running your mouth.” [Popehat on game developer’s lawsuit threats, language]
- “Climate change, Galileo, and our modern Inquisition” [Edward Dougherty, Public Discourse/MercatorNet on climate RICO] “Veteran campaigner Bill McKibben and Democratic presidential candidate Bernie Sanders demand the Obama administration launch a criminal investigation [over Exxon’s allegedly improper issue advocacy]… victory over deniers and climate criminals is always just around the corner” [Holman Jenkins, Jr., WSJ, paywall]
- In Denmark, courage of cartoon editors belatedly recognized, yet fear governs press [Jacob Mchangama, Politico Europe]
- Federal judge: First Amendment forbids Kentucky officials to shut down parenting column written by N.C. psychologist on grounds that it constitutes practice of psychology in Kentucky without a license [Caleb Trotter, Pacific Legal Foundation]
- “To Tweet or Not to Tweet: How FDA Social Media Guidelines Violate the First Amendment” [Kirby Griffis and Tamara Fishman Barago, Washington Legal Foundation]
“A University of Louisville student has filed a lawsuit against Katina Powell and her publisher, claiming Powell’s book, ‘Breaking Cardinal Rules: Basketball and the Escort Queen,’ has damaged the value of a degree from the school…. The suit is seeking class action status on behalf of the student body at UofL.” [WDRB]
A Muslim flight attendant has filed an EEOC complaint against ExpressJet; among her allegations are that the company has not adequately accommodated her desire not to serve alcohol to patrons, even though she says an arrangement under which she handed off that task to colleagues had previously proved workable [CBS Detroit] Eugene Volokh has a lengthy explainer on workplace religious accommodation, and argues that Kim Davis would have had a more colorable legal case had her lawyers filed under Kentucky’s state Religious Freedom Restoration Act (RFRA). And at Cato’s Constitution Day on September 17 I’ll be discussing my forthcoming piece on EEOC v. Abercrombie & Fitch, the hijab-accommodation case.
Former Arkansas Governor and presidential candidate Mike Huckabee responds as follows to a federal judge’s contempt finding against Rowan County clerk Kim Davis:
Kim Davis in federal custody removes all doubts about the criminalization of Christianity in this country. We must defend #ReligiousLiberty!
— Gov. Mike Huckabee (@GovMikeHuckabee) September 3, 2015
Henceforth when I think of Gov. Mike Huckabee it will be as someone unfamiliar with the legal concept of contempt of court. Gabriel Malor has dissected Huckabee’s enthusiasm for a purported right to defy SCOTUS rulings.
Kim Davis purges the contempt if she either carries out her public duties or quits her public office. So she is not in jail for refusing to violate her religion, unless her religion requires her to keep her public job (cool religion!). And while the traditional contempt power of the Anglo-American courts does generate various disturbing results — jailing dads for breaking a court order to see their kids, for example — pressure to resign a public office rates, to me, fairly low on the scale.
Speaking for myself, if my lawyers encouraged me to commit contempt of court, I might begin to wonder whose side they were on. Kim Davis’s Liberty Counsel lawyers, of course, were at the center of the extraordinary Miller-Jenkins case, much covered at this site, in which a client not only defied a court order but kidnapped a child along the way. And from Michelle Meyer, professional obligations of lawyers counseling clients re: contempt. (N.B.: Staver says Liberty Counsel “would never counsel a client to violate the law.”)
Plus: As Chris Geidner notes at BuzzFeed, Kentucky does not provide for recall of county clerks or removal by the governor for official misconduct. And Carly Fiorina, grown-up in the room: “when you are a government employee, I think you take on a different role.”
P.S. In general, courts have a range of remedial options when faced with contempt, such as fines. Their discretion is bounded by various factors; for example, they are not supposed to resort to harsher remedies if milder ones would obtain compliance. Many of the comparisons being bandied about, by the way, involve officials who were defying some law but were not themselves personally under a court order not to do so.
A curious argument making the rounds posits it as somehow relevant that marriage law changed after Davis won elected office, supposedly upsetting her reliance on expectations of what duties she would be called on to perform. That’s not really a legal question, in the sense of casting any doubt on whether she is expected to follow the laws of Kentucky and the United States in current form if she wants to hold office. It’s more of a union shop steward’s argument — “you can’t change my job duties unless you bargain with me first.”
And: Thoughtful Dan McLoughlin what-goes-around-comes-around on lawlessness, Kim Davis, and the pervasiveness of double standards.
“Printing business has First Amendment and RFRA right to refuse to print gay pride festival T-shirts” [Eugene Volokh] The Lexington Human Rights Commission had ordered employee training for a t-shirt printer that had objected to printing messages it disagreed with, but a Kentucky trial court judge threw out the order citing both the First Amendment to the U.S. Constitution and Kentucky’s version of the Religious Freedom Restoration Act, here applicable to a corporation as defendant since it was an incorporated business that had been the target of the discrimination complaint. Compare the bake-my-cake cases, which have generally come out the other way. And see in the U.K., “Patrick Stewart backs bakery after ‘gay cake’ court battle”: Independent, Telegraph, Katherine Mangu-Ward/Reason.