- Twenty years ago, some unions campaigned to make telecommuting illegal. Imagine if they’d managed to stop it [Reason 20 years ago feature, quoting my column back then]
- “Surge in working from home raises cyber exposure issues” [Judy Greenwald, Business Insurance]
- Provision slipped into CARES Act: mid-sized businesses that take a loan under the program would not be legally permitted to resist unionization [F. Vincent Vernuccio, Mackinac Center]
- Another effect of California’s awful AB5: interfering with availability of health care in parts of rural California that rely on itinerant medical contractors [K. Lloyd Billingsley, Independent Institute; earlier here, here]
- From before the crisis: insights into where federal Department of Labor is headed [speech by Secretary Eugene Scalia, teleforum with Jonathan Berry and Cheryl Stanton, both Federalist Society events] I’m quoted on the Trump administration record on labor issues, though to state the obvious my evaluation of it differs from the writer’s [Rachel Cohen, Washington Monthly]
- More from before crisis: New Virginia employment legislation lays out unusually broad definition of harassment, bad for employers and bad for speech [Hans Bader] Labor history overwhelmingly written by historians partial to the labor movement and its goals, and it shows [Mark Pulliam, Law and Liberty and Independent Review] “Details in new BLS report suggest that most of the gender earnings gap is explained by age, marital status, children, hours worked” [Mark Perry, AEI] “Do Right-to-Work Laws Work? Evidence on Individuals’ Well-Being and Economic Sentiment” [Christos Andreas Makridis, Journal of Law and Economics]
Lawmakers in both houses of the Virginia legislature have approved resolutions endorsing the Equal Rights Amendment, a measure proposed by Congress in 1972. An Associated Press story, in line with proponents’ characterization, describes the actions in Richmond as a “ratification,” as “final,” and as making Virginia “the critical 38th state.” Is that the case?
— Walter Olson (@walterolson) January 17, 2020
The Office of Legal Counsel of the U.S. Department of Justice has issued an opinion concluding that because the requisite number of states did not ratify the Equal Rights Amendment before Congress’s previously imposed deadline, it cannot be adopted now without starting the amendment process over. [Keith Whittington] The ruling binds executive branch agencies including the National Archives, which per AP “said it would abide by that opinion ‘unless otherwise directed by a final court order.'”
Proponents say the time limit written into the original ERA shouldn’t count because it appeared in the measure’s preamble rather than its main text, and argue that some combination of Congress and the courts are free if they like to count as valid all extensions (whether assented to by a supermajority or by a bare majority), revival measures, and ratification votes taking place at later times, while not counting as valid five states’ rescissions of earlier approval. The case of the 27th Amendment, which was proposed with no time limit and did not reach the requisite number of states until more than two centuries later, suggests that contemporaneous “meeting of the minds” is not so intrinsic a feature of the amendment process as many legal scholars once assumed; on the other hand, a 1921 Supreme Court case, Dillon v. Gloss, confirms that Congress did not act unconstitutionally in prescribing a time limit. [more: Michael Stokes Paulsen, Yale Law Journal, 1993]
The result before long could be a face-off in which advocates claim the ERA has been duly adopted as the 28th Amendment to the Constitution, while others say it hasn’t. [Mike Rappaport, Law and Liberty]
More: If you accept some ERA proponents’ theory that time limits don’t apply *and* that states can never rescind, then — surprise! — we may already be over the required number of states to require Congress to call a balanced budget constitutional convention [Josh Blackman]
- In August the Fifth Circuit handed down an opinion enjoining guidance on criminal records in employment issued by the Equal Employment Opportunity Commission, an agency to which Congress has accorded no rulemaking powers. Importantly, the opinion casts doubt on the EEOC’s powers to act by guidance in many other areas as well [Federalist Society teleforum with Mark Chenoweth and Eileen O’Connor on Texas v. EEOC]
- Trump signs “ban the box” measure that restricts criminal-record inquiries by federal contractors, not just the government itself [Thomas Ahearn, ESRCheck; Roy Maurer/SHRM]
- Also on Federal contract compliance: “Will New Executive Orders Close OFCCP’s Highway to Enforcement Hell?” [Chamber Institute for Legal Reform]
- “Europe ended its age of religious wars by carving out safe space for each of the contending faiths, guaranteeing that none of them would be able to absolutely crush the others. We ought to try that again.” [Andrew Koppelman, Balkinization on why he thinks Justice William Brennan might have preferred the “Fairness for All” bill (earlier) to the Equality Act; Scott Shackford]
- “Ohio state trooper, who is black, repeatedly sexually harasses women while on duty, gets fired. He sues, alleging racial discrimination, citing the behavior of a white trooper who was not dismissed. Sixth Circuit (over a dissent): ‘Morris Johnson and David Johnson are both troopers who acted inappropriately. And they happen to share the same last name. But the similarities end there.'” [IJ “Short Circuit” on Johnson v. Ohio Department of Public Safety]
- Virginia employment law could lurch leftward given breadth of pending legislation [Hans Bader and more]
- Texas trims back its SLAPP law after complaints it was being used in circumstances far from original design [John G. Browning, D Magazine] Howard Wasserman on John Oliver on SLAPP suits [Prawfsblawg]
- In the U.S., sovereign governments can’t sue for libel. Does that include Indian tribes? [TMZ, Eugene Volokh]
- “Your Periodic Reminder that Blogging About Litigation Can Generate More Litigation” [Eric Goldman]
- Virginia emerges as libel tourism destination in high-profile cases [Justin Jouvenal, Washington Post; Paul Alan Levy, Public Citizen on Devin Nunes action, earlier]
- “Virginia Legislator Joe Morrissey Gets Called “Fool,” Sues, Arguing He’s Not a Fool” [Eugene Volokh] “Retired Law Professor Sues Lawyer-Commenters on Law Blog” [same]
- “Kansas senate leader ordered to pay nearly $39,000 in legal fees to The Kansas City Star after a judge dismissed his defamation lawsuit” [Katie Bernard, Kansas City Star]
If county and city law enforcers have discretion not to charge low-level drug offenses, do they also have discretion not to charge low-level gun offenses? Cam Edwards on the Virginia battle over “Second Amendment sanctuary” resolutions [National Review].
* As expected, Democrats took over both houses in the Virginia legislature, sweeping the D.C. and Richmond suburbs where they successfully nationalized the issues. Virginia has been a badly gerrymandered state, which figured as an issue in the campaign. Now that they are fully in charge of the process, Virginia Democrats will need to decide whether they actually believe in moving toward neutral and impartial redistricting methods that take the power of line-drawing out of the hands of interested parties.
* New York City voters overwhelmingly approved a proposal to adopt ranked choice voting (RCV) in primary and some other elections. While I know this isn’t a universally shared view, I see a lot of merit in ranked choice voting and look forward to seeing more large jurisdictions experiment with it.
* Jim Hood, whose doings as Mississippi Attorney General have long furnished grist for this blog, looks to have fallen short in his bid for Mississippi governor.
I wrote in October about “a low-profile program in which a nonprofit backed by former New York City Mayor Michael Bloomberg places lawyers in state attorney generals’ offices, paying their keep, on the condition that they pursue environmental causes.” Now the Virginia legislature has approved a provision apparently aimed at heading off the practice in that state, the relevant provision reading: “The sole source of compensation paid to employees of the Office of the Attorney General for performing legal services on behalf of the Commonwealth shall be from the appropriations provided under this act.” Chris Horner of the Competitive Enterprise Institute has campaigned against the practice. [Todd Shepherd, Free Beacon; Charmaine Little, Legal NewsLine]
- Political fight brewing in California over ballot initiative that would pave way for bringing back rent control [Michael Hendrix, City Journal]
- “Metes and bounds” method of describing legal property boundaries has been much derided, but new archival research from American colonial period suggests its benefits then were greater and costs lower than might appear [Maureen (Molly) Brady, SSRN, forthcoming Yale Law Journal] Just for fun: street grid orientation (or lack thereof) in major cities expressed as polar charts [Geoff Boeing]
- “Alexandria, Virginia Gets Housing Affordability Wrong” [Vanessa Brown Calder, Cato]
- Houston does not zone but it does subsidize deed restrictions. Is that good? [Nolan Gray, Market Urbanism]
- Great moments in historic preservation: “Silver Lake gas station moves toward landmark status” but connoisseurs say it’s not nearly as choice as the three service stations previously landmarked in L.A. [Curbed Los Angeles]
- “America’s Ugly Strip Malls Were Caused By Government Regulation” [Scott Beyer]
Our discussion, kicked off with my opening essay earlier this month, continues with Michael McDonald and Raymond La Raja and now my response to them. (& welcome Election Law Blog/Rick Hasen readers). In other news, I played a bit part (as guest speaker) in this William & Mary project using GIS tools to redraw Virginia house districts, thanks to Profs. Rebecca Green and Robert Rose.
In 2015, following the lead of many other states, Virginia passed a “law that says women have a right to breast-feed anywhere they have a legal right to be.” The law provides “no exemption for religious institutions.” Now a mother and her attorney say Summit Church in Springfield, in the D.C. suburbs, had no right to ask her to use a private room to feed her baby during a service.
Personally, I’m fine with public breast-feeding no longer being categorized, as it once was, as an automatically shocking thing. But why is government dictation of how a church may arrange its rules for worship no longer categorized as an automatically shocking thing? [Michael Alison Chandler and Laura Vozzella, Washington Post] [adapted and cross-posted at Cato at Liberty; and welcome Mosaic Magazine readers]