The new White House budget “would kill a program that feeds 2.4 million senior citizens,” claimed Time. Nope. It “eliminates funds for Meals on Wheels,” declared The Hill. Not so. I’ve got a new piece up at National Review on Thursday’s press freakout about supposed plans to zero out the Meals on Wheels program. On the question of how to interpret what OMB Director Mick Mulvaney said at a press conference when reporters asked about the program, my take comes out similar to those of Glenn Kessler at the Washington Post and Kevin Drum at Mother Jones (press endeavored to make budget director sound callous by “smushing together three quotes delivered at three different points.”) More: Gregory Korte, USA Today.
My chapter on labor and employment law in the new 8th Edition Cato Handbook for Policymakers has caused a riffle or two of reaction, what with its proposals to repeal the NLRA, ADEA, FMLA, and a bunch of other laws (and that’s just the start, really). Robin Shea and Jon Hyman both respond with posts on the theme of what would happen if they ran the world, could push a button, or were monarch for a day. Their responses are good-tempered in both agreement and disagreement, which cannot be said for all the corresponding fun had once the list started circulating over on Twitter.
If my chapter doesn’t manage to flood the outrage zone completely for committed supporters of current law, the handbook’s chapter on the minimum wage can help provide further stimuli. It’s written by Thomas Firey.
- In the just-out eighth edition of the Cato Handbook for Policymakers, I helped revise and add to the chapter on tort and class action reform, joining Robert A. Levy and Mark Moller as authors;
- Baron & Budd “Preparing For Your Deposition” asbestos memo still being fought over in court 20 years later [David Yates/Southeast Texas Record, my piece back when]
- “Wanted in Kentucky, seemingly immune to arrest in Ohio” [James McNair, CityBeat on Stan Chesley]
- Congress needs to rewrite the law on multi-district litigation or else the lawyerly gamesmanship will continue [James Beck, Drug and Device Law]
- While generally critical of class action reform proposals in Congress, Alison Frankel does find one idea in it — accounting for class action payouts — to be intriguing [Reuters]
- “New Jersey, Allstate sue chiropractors convicted of running ‘personal injury mill'” [Susan K. Livio, NJ.com]
My first piece for Quartz: why lawsuits over President Trump’s foreign business interests are likely to be more a nuisance than a knockout blow, even if his opponents identify potential violations of the Emoluments Clause. Excerpt:
Two aspects of the Clause in particular must be causing Trump’s lawyers angst: It’s worded as a no-fault provision, and it sets no minimum threshold. That means a present or emolument could tip the scales, even if it’s meant innocently on both sides and is very small. And the realities of an international hospitality and real estate business make for lots of possible triggers both large and small.
Even if Trump fails to comply with the Clause, however, the courts aren’t obliged to provide a broad remedy. A case that manages to get over the standing hurdle might result in a narrow ruling ordering the president’s business, say, to refund a single disputed payment. Before resorting to wider injunction powers, as groups like CREW urge, judges would need to consider what’s known as the political question doctrine under which the courts have chosen to say out of some issues they see as better suited for other branches of government—or for voters—to address.
The Supreme Court has granted certiorari in the case of T.C. Heartland v. Kraft Foods, which turns on a minor detail of statutory interpretation but raises high stakes indeed: if the Court agrees that a 2011 enactment narrowed venue in patent suits, it could end the current arrangement in which plaintiffs are free to steer most such suits into just a few friendly jurisdictions. My write-up at Cato concludes:
My own suspicion is that not in a thousand years would a thoughtful deliberative process have entrusted the future care of intellectual property in America’s tech sector to the bench and bar of Marshall, Texas, population 24,501. But that’s in no way a reflection on the quality of the able if wily legal talent to be found in East Texas. It’s a reflection on the quality of the lawmakers in the U.S. Congress.
I’ve got a few thoughts up at Ricochet about the size of the Mall crowd, “alternative facts,” and the encouragement of inaugural crowderism.
Jay Clayton of Sullivan & Cromwell, president-elect Donald Trump’s choice to head the Securities and Exchange Commission, has not taken a high-profile role in policy debates but according to MarketWatch was involved in preparing a 2011 report for the New York City Bar critical of enforcement of the Foreign Corrupt Practices Act (FCPA). That’s a point in his favor, I argue at Cato, since the case against zealous FCPA enforcement is well established. Related earlier, and Texas Public Policy Foundation 2014. More: Andrew Ramonas, BNA Bloomberg.
Some on the left are still blasting judges as activist for standing up to Obama administration assertions of executive power in the regulatory sphere. That might prove shortsighted considering what’s on the agenda for the next four years, or so I argue in a piece in Sunday’s Providence Journal.
I take particular exception to a Bloomberg View column in which Noah Feldman, professor at Harvard Law, assails federal district judge Amos Mazzant III for enjoining the Department of Labor’s overtime rule for mid-level employees (earlier). In a gratuitous personal jab, Feldman raises the question of “whether Mazzant sees an opportunity for judicial advancement with this anti-regulatory judgment” in light of the election results, though he offers not a particle of evidence that the judge, an Obama appointee, is angling for higher appointment under the new administration.
The problems with the overtime rule were both substantive and procedural. As I mention in the piece, “more than 145 charitable nonprofits signed a letter begging the department to allow more than a 60-day public comment period. It refused.” That letter is here (via, see Aug. 5, 2015 entry). I also mention that a court recently struck down the Department of Labor’s very bad “persuader rule” that would have regulated management-side lawyers and consultants; more on that from Daniel Fisher, the ABA Journal, and earlier.
After pointing out that many of the rulings restraining the Obama administration have been written or joined by Democratic-appointed judges, I go on to say:
Judges rule all the time against the partisan side that appointed them.
And we’ll be glad of that when the Trump executive orders and regulations begin to hit, and Republican-appointed federal judges are asked to restrain a Republican White House, as they have often done in the past.
We should be celebrating an energetic judiciary that shows a watchful spirit against the encroachments of presidential power.