- Extended look at problems of the adult guardianship program in New York [John Leland, New York Times, earlier]
- “‘Professional Speech’: a Distinction without a Difference” after the NIFLA case [Cato podcast with Caleb Brown and Robert McNamara of Institute for Justice]
- New York enacts law imposing stiff new tax on opioid makers and wholesalers while forbidding them to recoup it by raising prices for buyers in other states. That won’t fly under the Dormant Commerce Clause, rules federal judge [Nate Raymond, Reuters/Insurance Journal]
- Should courts uphold laws grounded in part on hostility to a religious group, though rationalized on some other basis? Both right and left have trouble staying consistent [Ilya Somin]
- “Oxford University Gets Opposition To Its Attempt To Trademark ‘Oxford’ For All The Things” [Timothy Geigner, TechDirt]
- Australian corrections officials keep bringing the wrong Peter Brown to court as murder defendant [Lowering the Bar]
I’ve posted before about our July Cato conference on adoption, pluralism, and children’s interests. Now Cato’s bimonthly Policy Report has published highlights of the panel on anti-discrimination law and religious agencies, with speakers including Stephanie Barclay of BYU, Sarah Warbelow of the Human Rights Campaign, Robin Fretwell Wilson of the University of Illinois, and me.
One of my comments about pluralism and freedom in the system: “When I began reading about adoption, I realized for about the umpteenth time how glad I was to live in America.” Not that the system isn’t full of problems: on the grueling 26-year litigation in the New York City foster care case, Wilder v. Bernstein, see this 2011 piece of mine.
- State by state survey of 140 bills around the country on hot topics related to religious accommodation, including adoption, service refusals, campus speech, health care, etc. [Kelsey Dallas, Deseret News] And don’t forget to mark your calendar for two weeks from today when Cato will host our half-day conference on adoption, foster care, and pluralism with an array of fine speakers;
- What ails long-haul trucking in a time of prosperity? Federal break regulations, electronic monitoring, artificial constraints on parking among factors [Virginia Postrel, Bloomberg]
- Antitrust debates cut across political spectrum [Daniel A. Crane, Cato Regulation magazine] “Solicitor General Inveighs Against Antitrust-Law Revolution in SCOTUS ‘Apple v. Pepper’ Amicus Brief” [Corbin Barthold, WLF]
- These seem like well-planned-out laws: Google suspends running campaign ads in Washington and Maryland following states’ enactment of new disclosure laws [Michael Dresser, Baltimore Sun, Jim Brunner and Christine Clarridge, Seattle Times, Scott Shackford]
- “Missouri appeals court tosses $55 million Johnson & Johnson talc-powder verdict” [Reuters, earlier (courts reverse two other big verdicts) and generally]
- “What Secretary Carson Should Know about Affirmatively Furthering Fair Housing (AFFH)” [Vanessa Brown Calder, earlier]
- Judge orders Kansas Secretary of State Kris Kobach to take CLE lessons as sanction for disclosure and discovery missteps [Lowering the Bar, Jonathan Adler]
- In 7-2 decisions, Supreme Court of Canada finds it “proportionate and reasonable” limitation on religious liberty for Ontario and British Columbia to refuse rights of legal practice to grads of conservative Christian law school which requires students to agree to refrain from sex outside heterosexual marriage [Kathleen Harris, CBC, Caron/TaxProf, Trinity Western University v. Law Society of Upper Canada, Jonathan Kay/Quillette, earlier on Trinity Western]
- “Gratiot County, Mich. officials foreclose on 35-acre parcel worth $100k over unpaid $2k tax debt. They sell the property for $42k and keep $2k to cover the tax bill—and keep the other $40k as well. District court: ‘In some legal precincts that sort of behavior is called theft.’ Motion to dismiss denied.” [John Kenneth Ross, “Short Circuit” on Freed v. Thomas, United States District Court, E.D. Michigan]
- UK: “Obese people should be allowed to turn up for work an hour later, government adviser recommends” [Martin Bagot, Mirror]
- “Law Schools Need a New Governance Model” [Mark Pulliam, and thanks for mention]
- “Until 1950, U.S. Weathermen Were Forbidden From Talking About Tornados” [Cara Giaimo, Atlas Obscura]
I’ve got a piece up at the Weekly Standard on yesterday’s Masterpiece Cakeshop decision, on which a Supreme Court uniting 7-2 on result — but split five ways as to particulars — found the Colorado Civil Rights Commission to have operated unfairly, thus managing to dodge a substantive decision about the limits of forced expression. “Next time you run this process, skip the religious animus” is not the same as proclaiming a First Amendment right for the baker to turn down the wedding, though it may convey a significant message for the future in its own right.
More commentary: Ilya Shapiro (“the real action is foreshadowed by the concurring opinions”), Eugene Volokh (“will have little effect on other such same-sex wedding service provider cases, especially when government commissioners realize they shouldn’t say more about religion than is necessary”), John Corvino (opinion could put a brake on “rushing to dismiss our opponents as ‘despicable'”), David French (Kennedy’s emphasis on comparing the case with cake inquiries that offend other bakers bodes well for religious service providers), and Richard Epstein (“the worst kind of judicial minimalism”; what does the not-yet-legality of gay marriage at the time have to do with anything? and can Colorado reopen the case?), and earlier here. And you can listen to my guest appearance yesterday on the popular Clarence Mitchell IV (C4) show on Baltimore’s WBAL.
A church outside Akron, Ohio, ran a cafeteria open to the public in which much of the labor was provided free by volunteer members of the congregation. The U.S. Department of Labor sued it on the grounds that it violates the minimum wage provisions of the Fair Labor Standards Act (FLSA) for an enterprise, church or otherwise, to use volunteer unpaid labor in a commercial setting. A trial court agreed, but now the Sixth Circuit has reversed and remanded, pointing out that “to be considered an employee within the meaning of the FLSA, a worker must first expect to receive compensation.”
Judge Raymond Kethledge, writing in concurrence, takes issue with the Department of Labor’s argument that the cafeteria volunteers count as employees because “their pastor spiritually ‘coerced’ them to work there. That argument’s premise — namely, that the Labor Act authorizes the Department to regulate the spiritual dialogue between pastor and congregation — assumes a power whose use would violate the Free Exercise Clause of the First Amendment.” Kethledge also points out that as “the record makes clear, the Buffet’s purpose was to allow the church’s members to proselytize among local residents who dined there,” and that along with its congregant volunteers the establishment “had 35 full-time paid employees — all of whom, incidentally, have lost their jobs as a result of this lawsuit.” [Acosta v. Cathedral Buffet et al. via Ted Frank on Twitter]
More: cross-posted, slightly expanded, at Cato.
- Chicago mayor not the only one pushing this awful idea: New Mexico lawmakers propose requiring high school grads to apply to college or file alternate life plan [Dan Boyd, Albuquerque Journal]
- “New York’s Bid to Control Religious Schools” [Avi Schick, WSJ/Yeshiva World]
- “Couple’s three girls were taken away after Walmart reported innocent bath time photos” [Derek Hawkins, WaPo/The State, Jacob Sullum, Reason]
- Also soliciting public comment: “Education Department delays Obama rule encouraging racial quotas in special ed” [Jerome Woehrle, Liberty Unyielding; Erica L. Green, New York Times; Hans Bader/CEI last fall] “Civil Rights Commission Takes on Issue of Minorities in Special Education” [Christina Samuels, EdWeek] And: “Federal Special Education Law and State School Choice Programs” [Tim Keller and Nat Malkus, Federalist Society]
- New from Cato, edited by George H. Smith and Marilyn Moore: “Critics of State Education: A Reader.”
- “Everybody Hates DC’s Proposal Forcing Daycare Workers to Get College Degrees” [Eric Boehm, Reason, earlier here and here]
I’m a bit late getting to this major survey from my colleague Emily Ekins and associates. Some highlights good and bad:
* By 71% to 28%, Americans lean toward the view that political correctness silences discussions society ought to have, rather than the view that it is a constructive way to reduce the giving of offense;
* Liberals are much more likely than conservatives to say that they feel comfortable saying things they believe without fear that others will take offense.
* By a 4-to-1 margin Americans consider hate speech morally unacceptable, while by (only) a 3-to-2 margin they do not want the government to ban it.
* “47% of Republicans favor bans on building new mosques,” notwithstanding the First Amendment’s protection of free exercise of religion.
* “51% of Democrats support a law that requires Americans use transgender people’s preferred gender pronouns,” also notwithstanding the First Amendment.
* Upwards of 80% of liberals deem it “hateful or offensive” to state that illegal immigrants should be deported or that women should not serve in military combat, with 36% and 47% of conservatives agreeing respectively. “39% of conservatives believe it’s hate speech to say the police are racist, only 17% of liberals agree.”
And much more: on college speaker invitations, microaggressions, whether executives should be fired over controversial views, media bias, forced cake-baking, and the ease of being friends across partisan lines, among many other topics.
Watch: videos now online from last month’s Cato conference, The Future of the First Amendment. I talk religious freedom on a panel with Robin Fretwell Wilson of the University of Illinois Law School and John M. Barry, author of Roger Williams and the Creation of the American Soul:
Eugene Volokh gives a keynote speech on the “revolution in remedies” that is changing libel and privacy law, which “ties in with technological change” in the nature of media, over a period in which there has been virtually no change in the substantive doctrine of libel:
Other panels include a discussion of the remarkable findings of a new Cato poll on free speech and presentations on a diverse array of other topics including European regulation of online media, commercial speech, and campaign finance.
- “The justices tackle partisan gerrymandering again: In Plain English” [Amy Howe, SCOTUSBlog, earlier on Gill v. Whitford here and here] SCOTUS declines to speed up review of Maryland gerrymander, and what that could mean for wider issue [Lyle Denniston]
- Reversal of fortune: firing back on the Hamilton angle in Emoluments Clause fight [Josh Blackman on new filings countering previous Hamilton claims, Prof. Jed Shugerman’s apology, Adam Liptak]
- From Usery to Garcia to commandeering: better for SCOTUS to respect states’ core sovereignty [Nick Dranias, Liberty and Law]
- Cato Unbound roundtable on religious liberty with Ilya Shapiro, David Gans, Robin Fretwell Wilson, and K. Hollyn Hollman; related 2016 conference and new volume from Cato, Deep Commitments; 2016 religious liberty report from U.S. Conference on Civil Rights (note in particular separate statements and rebuttals by commissioners including Gail Heriot);
- Panel on expected trends in federal courts with Republican nominations: Randy Barnett, Richard Epstein, Adam White, James Copland [Manhattan Institute] At 23:35, White refers to Scalia’s 1981 “Regulatory Reform: The Game Has Changed” on how party control change implies playbook change in seeking regulatory reform, while Epstein at 28:00 cites his own exchange with Scalia;
- SCOTUS should apply papers and effects language of Fourth Amendment to protect data records as property [Ilya Shapiro]