- Court grants review of two cases, likely to be among the term’s more important for business, to clarify the limits of state court personal jurisdiction when none of defendants’ actions relevant to the dispute took place in the state [Jim Beck on Ford Motor Co. v. Bandemer (Minnesota) and Ford Motor Co. v. Montana Eighth Judicial District Court]
- From Peace Cross to Espinoza: where religious exercise and the Establishment Clause are headed in the Roberts Court [Federalist Society conference panel video and transcript with Stephanie Barclay, Luke Goodrich, Micah Schwartzman, and William P. Marshall, moderated by the Hon. Carlos Bea] “Conservatives want courts to consider the governments’ bigoted motives in enacting anti-Catholic Blaine amendments, but not when it comes to Trump’s travel ban. Liberals tend to be inconsistent in the opposite way.” [Ilya Somin]
- Federal law forbids attorneys and advocates to “encourage” an alien to reside unlawfully in the U.S. Spot the First Amendment problem with that [Ilya Shapiro and Michael Collins on Cato merits amicus brief in case of U.S. v. Sineneng-Smith]
- “The Supreme Court Should Continue To Defend Arbitration” [my new post with Ilya Shapiro and Dennis Garcia on Cato Institute certiorari brief in OTO, LLC v. Kho]
- What Martin Van Buren had to say in his memoirs concerning James Madison, Bushrod Washington, and Chancellor James Kent [Gerard Magliocca, Prawfsblawg]
- Is the Ninth the most overturned circuit? Checking the numbers [Adam Feldman, Empirical SCOTUS]
- Search and seizure: “How Long Does the Third Party Doctrine Have Left?” [Cato Daily Podcast with Billy Easley II and Caleb Brown, earlier]
Earlier this month we linked the story of a Dallas car wash owner whose business was shut down by the city under a nuisance abatement law because it was deemed to attract crime, even though the owner was not alleged to have done anything to further the crime and in fact had called police many times to complain about it.
Last month a Sixth Circuit panel, over a dissent, ruled that the city of Saginaw, Mich. may have violated Rita Johnson’s rights when it shut down her Rita’s Southern Soul Café without first according her a hearing. Johnson had rented out her restaurant one evening to a private party; “For unknown reasons, individuals unaffiliated with her or the party emerged from a vehicle that night and began shooting at the restaurant.” Police surmise that rivalry between gangs might have prompted the attack, but neither perpetrators nor motive were established. The case now goes back for further litigation in which Johnson will be allowed to argue that a hearing before shutting down her café would have been warranted. [Johnson v. Morales via Institute for Justice “Short Circuit”]
“…when it comes to parody, the law requires a reasonable reader standard, not a ‘most gullible person on Facebook’ standard. The First Amendment does not depend on whether everyone is in on the joke.” — Judge Amul Thapar, Sixth Circuit, writing on behalf of a unanimous panel that “an Ohio man who was acquitted of a felony after creating a parody Facebook page that mocked a suburban Cleveland police department can sue the city and two police officers over his arrest.” [Jonathan Stempel, Reuters]
Related: everyone has the right to call politicians idiots, and that goes for gun store owners too [Eugene Volokh; North Carolina gun store owner’s billboard likened by sitting member of Congress to “inciting violence”]
The insurance policy had excluded coverage for injuries arising from “illegal use of alcohol,” but a Sixth Circuit panel ruled that since the 22-year-old’s actual consumption of the alcohol hadn’t been unlawful — though his decision to operate a dirt bike while intoxicated afterward was — the exclusion did not apply. Back to the drawing board on contract language for the insurer [John Agar, MLive; Lowell, Mich.]
- Sixth Circuit ruling breaks new ground in disturbing ways: employer can be sued under Fair Housing Act if it withdraws job offer based on disapproval of accepted applicant’s public position on a housing controversy [Linkletter v. Western Southern Financial Group Inc.; Chiodi]
- A request from blogger Coyote: he’s looking to interview folks who run 10-40 employee firms [details]
- “Massachusetts is just one of six states that prohibit employers from donating to candidates while allowing unions to donate,” and the only one that prohibits employers from administering a PAC [Paul Craney and James Manley, Commonwealth Magazine]
- California voters sought to fix gerrymandering in races for state and federal office, but omitted to address the county level. Guess what’s happening now? [AP] No one is really fooled by Maryland legislature’s pledge to reform redistricting if five (5) nearby states all agree to enact exactly the same reforms [Nancy Soreng and Jennifer Bevan-Dangel, Washington Post; Rachel Baye/WYPR and related audio, legislation]
- D.C. should concentrate on deregulating hotel and apartment provision, rather than try to choke off AirBnB. [David Alpert, Greater Greater Washington, rounding up various views] “California will audit Airbnb hosts for racial discrimination” [ABA Journal, Guardian]
- Securities class action settlements continue steep rise [Harvard Corporate Governance Project]
Judge Jeffrey Sutton, writing for a Sixth Circuit panel, reverses a Tax Court ruling in an opinion beginning thus:
Caligula posted the tax laws in such fine print and so high that his subjects could not read them. Suetonius, The Twelve Caesars, bk. 4, para. 41 (Robert Graves, trans., 1957). That’s not a good idea, we can all agree. How can citizens comply with what they can’t see? And how can anyone assess the tax collector’s exercise of power in that setting? The Internal Revenue Code improves matters in one sense, as it is accessible to everyone with the time and patience to pore over its provisions.
In today’s case, however, the Commissioner of the Internal Revenue Service denied relief to a set of taxpayers who complied in full with the printed and accessible words of the tax laws. The Benenson family, to its good fortune, had the time and patience (and money) to understand how a complex set of tax provisions could lower its taxes.
And taking issue with the IRS Commissioner’s decision to disallow the use of two Congressionally approved devices, the Roth IRA and DISC (domestic international sales corporation), in a way said to trigger the so-called substance-over-form doctrine:
Each word of the “substance-over-form doctrine,” at least as the Commissioner has used it here, should give pause. If the government can undo transactions that the terms of the Code expressly authorize, it’s fair to ask what the point of making these terms accessible to the taxpayer and binding on the tax collector is. “Form” is “substance” when it comes to law. The words of law (its form) determine content (its substance). How odd, then, to permit the tax collector to reverse the sequence—to allow him to determine the substance of a law and to make it govern “over” the written form of the law—and to call it a “doctrine” no less.
- Uh-oh: “40% of Millennials OK with limiting speech offensive to minorities” [Pew Research, Cathy Young on Twitter (“OK, NOW can we stop the ‘naww, political correctness isn’t a threat to free speech, it’s just about courtesy’ spin?”)]
- Breezy but informative guide to why Schneiderman & Co. might hope to find, amid the general rule that the First Amendment protects business speech about public policy, an exception/ loophole for business speech about public policy when it affects securities [Matt Levine, Bloomberg View; earlier on climate speech investigations here, etc.]
- “Lawsplainer: How The Sixth Circuit Stood Up To Hecklers (And Cops)” [Popehat on Michigan case of Bible Believers v. Wayne County, Dearborn protesters threatened with arrest for “disorderly conduct” arising from prospect of violence against them]
- Discrimination law: “Can Office Depot be forced to print flyers that it disapproves of?” [Eugene Volokh; compare Hands On Originals case in Kentucky]
- Scary: UK’s Muslim Council calls for controls on UK press coverage of Islamic issues [Ben Flanagan, Al-Arabiya] Prominent Labour MP says he would have “no problem” with reintroducing blasphemy laws [National Secular Society]
- Cook County sheriff sent letterhead takedown demands to Backpage.com over sex ads, but Supreme Court has looked askance at informal you’d-better-not-publish-this pressure by government [Ilya Shapiro and Randal John Meyer, Cato]
- Portland, Ore. police department “encourages the reporting to law enforcement” of “offensive language used on social media” even when not illegal. It does? [Charles Cooke]
An 8-5 decision from (these days) one of the nation’s more liberal circuits in EEOC v. Ford Motor Company:
The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate their disabled employees; it does not endow all disabled persons with a job—or job schedule—of their choosing. Jane Harris, a Ford Motor Company employee with irritable bowel syndrome, sought a job schedule of her choosing: to work from home on an as-needed basis, up to four days per week. Ford denied her request, deeming regular and predictable on-site attendance essential to Harris’s highly interactive job. Ford’s papers andpractices—and Harris’s three past telecommuting failures—backed up its business judgment.
Nevertheless, the federal Equal Employment Opportunity Commission (EEOC) sued Ford under the ADA. It alleged that Ford failed to reasonably accommodate Harris by denying her telecommuting request and retaliated against her for bringing the issue to the EEOC’s attention. The district court granted summary judgment to Ford on both claims. We affirm.
- Lefty argument du jour: government benefits for working poor subsidize low-wage employers. Oh? [Adam Ozimek via Tyler Cowen] Similarly: Tim Worstall; Michael Strain, WaPo; Coyote;
- “OSHA’s Latest Reporting and Recordkeeping Mandates: More Burdens with Few Benefits” [Eric J. Conn, Washington Legal Foundation]
- “EEOC: New York City owes underpaid minority female employees $246 million” [NY Daily News, NY Post (“de Blasio administration offered no evidence to contest the charges, the commission said”), Jon Hyman]
- Will the Trans-Pacific Partnership (TPP) trade deal require countries to adopt minimum wage laws? [Simon Lester, Cato]
- House hearing on Obama executive order blacklisting contractors over labor violations in unrelated areas of their business, or at subcontractors [witnesses and testimony, Walberg statement, press release, video, SHRM]
- Sixth Circuit retaliation decision confirms need for kid-glove handling of employees who file discrimination complaints [Jon Hyman]
- Spontaneous protest doesn’t come cheap: SEIU spent $24 million in 2014 on fast food/retail wage movement [WLS Chicago 7]
I’ve got a new post up at Cato (“Sixth Circuit: You’re Drunk, EEOC, Go Home“) on the Equal Employment Opportunity Commission’s spectacular loss yesterday at the Sixth Circuit in the Kaplan case. As I comment, the victory for the defendant is
all the more impressive because one of the three judges on the opinion is liberal lion Damon Keith, about as sympathetic a judicial ear as the EEOC could normally hope for. It’s a sharp setback for the agency’s dubious “disparate impact” campaign against employer use of credit and criminal records in hiring. And it’s also part of a pattern of rebuffs and defeats the EEOC has been dealt by judges across the country since President Obama turned the agency on a sharp leftward course with his appointments.
The Sixth Circuit has actually been one of the EEOC’s better circuits in recent years. For example, it reversed a Michigan federal judge who in 2011 had awarded $2.6 million in attorneys’ fees to Cintas, the employee-uniform company, and reinstated the lawsuit. In doing so, the appellate panel nullified what had been the lower court’s findings of “egregious and unreasonable conduct” by the agency, including a “reckless sue first, ask questions later strategy.” The commission hailed the reversal as one of its big legal wins — although when one of your big boasts is getting $2.6 million in sanctions against you thrown out, it might be that you don’t have much to brag about.
For some other recent EEOC courtroom setbacks, check our roundup of last month. If you wonder why the commission persists in its extreme aggressiveness anyway, one answer may be that the strategy works: most defendants settle, and the commission hauled in a record $372 million in settlements last year. Yet here and there, as with Kaplan, defendants decide to put up a fight, with instructive results. When will Congress begin to hold the commission accountable? More: Hans Bader, CEI.