“Divorce Corp.”

by Walter Olson on April 23, 2014

Tracy Oppenheimer at Reason profiles a new reformist book and documentary on the costly business of divorce. “It’s the fourth most common cause of bankruptcy in the United States,” says filmmaker Joseph Sorge. Coverage: Paul Raeburn/Huffington Post, IMDb, Hollie McKay/Fox News, Nicolas Rapold/New York Times.

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On a computer case

by Walter Olson on April 23, 2014

PelicanGuarantee

An amusing guarantee/waiver, via @fourgreenis on Twitter.

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Yesterday the U.S. Supreme Court, over two dissents, ruled that the voters of Michigan were within their rights under the Constitution’s Equal Protection Clause to enact an amendment to the state constitution barring racial preference in public university admissions. (Earlier here, here, etc.) Justice Kennedy wrote a plurality opinion for three Justices, while Justice Scalia, joined by Justice Thomas, Justice Breyer, and Chief Justice Roberts wrote separate concurring opinions. Justice Sotomayor dissented, joined by Justice Ginsburg, and Justice Kagan was recused. Both sides maintained that the core controversy was not over whether Michigan was obliged to keep racial preferences as such, but rather over whether the state’s way of banning them (through voter constitutional amendment) had fallen afoul of the Court’s holding in earlier cases that the Equal Protection Clause requires that the political process itself not be arranged in ways unfavorable to minority interests.

I sent out tweets and retweets summarizing highlights of the Roberts, Scalia, Sotomayor, and plurality opinions and reprint them here, earliest first (starting with the Roberts and Scalia opinions).

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I’m a little late in getting to this, but last month Radley Balko wrote the definitive blog post on the appalling state of federal bank structuring law, which makes it a felony to arrange bank transactions in quantities of less than $10,000 so as to avoid reporting requirements that kick in at that threshold. He hits virtually every point we’ve made in this space over the past couple of years, including the trend toward “freestanding” structuring prosecutions not arising from any underlying criminal activity, the close connection to forfeiture law, the enlistment of banks as a covert surveillance/informant network not disclosed as such to customers, Congress’s removal of willfulness as a condition of the offense, the unusual concentration of cases coming out of the state of Maryland, the white-knight role played of late by the public-interest law firm Institute for Justice, and of course the jarringly atypical leniency extended to the most famous structurer of all, New York’s Eliot Spitzer.

The immediate news event that prompted the coverage, summarized by Eugene Volokh: a Seventh Circuit decision, in U.S. v. Abair, reversing and remanding for retrial the conviction of an Indiana woman convicted for withdrawing her own money from her bank in violation of the statute so as to finance her purchase of a house; the government took the house from her in forfeiture.

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Schools roundup

by Walter Olson on April 22, 2014

  • Excellent Mark Oppenheimer column cites new Cornell study: students deprived of whole milk and chocolate milk as choices “drank less milk, threw more milk away, and bought fewer school lunches over all” [New York Times]
  • “The process of tying curricular standards to federal money actually helps create the ‘ideological circus’ that [David] Brooks decries.” [Rick Hills, Prawfsblawg on Common Core]
  • School choice lawsuits and legislation news updates from Alabama, Alaska, Georgia, Kansas, Louisiana, North Carolina, and elsewhere [Jason Bedrick, Cato]
  • More applications of New Jersey’s pioneering “anti-bullying” law. And will it stand up in court? [Hans Bader, earlier here, etc.]
  • “When one New Zealand school tossed its playground rules and let students risk injury, the results were surprising” [Sarah Boesfeld, National Post (Canada)] Plenty of discussion of new Hanna Rosin piece “The Overprotected Kid” [Atlantic via Tabarrok; a contrasting view from Max Kennerly]
  • News you can use about applicability of Institutional Review Board regs to research on oneself [Michelle Meyer, Bill of Health] Another new blog about IRBs [Suffocated Science via Instapundit]
  • Community college suspends professor over Google Plus share of Game of Thrones quote on daughter’s T-shirt [Bergen Record]

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Allergic to vetoes?

by Walter Olson on April 22, 2014

President Obama has signed a bill he deems unconstitutional — it purports to (very slightly) restrict presidential authority to receive certain foreign ambassadors on U.S. territory — while issuing a signing statement calling the measure “advisory” [Josh Blackman] If Congress tries to get away with something unconstitutional, isn’t it more consistent with the President’s oath to defend the Constitution for him to veto it rather than sign-and-ignore?

One might sympathize (if not necessarily agree) with a President who gave up and signed a 400-page omnibus funding bill containing an unconstitutional provision on page 237 about the Cedar Rapids post office. But a bill whose whole point is unconstitutional is supposed to be the easy case, no?

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“Not long after learning about the parody Twitter account @Peoriamayor, the city’s real mayor, Jim Ardis, told police he wanted to find out who was publishing sometimes vulgar messages there, according to a search warrant filed Thursday. … Two judges signed off on warrants to get information from Twitter and Comcast. Another judge approved a Tuesday afternoon raid.” [Peoria Journal-Star via Scott Shackford/Reason; Justin Glawe, Vice]

P.S. Related from Starkville, Mississippi last year.

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How far can an employee go in ADA demands before finally going too far? [Charles Toutant, New Jersey Law Journal]

The lawyer, a deputy attorney general known as E.H. in court papers, made 30 requests for special treatment in the course of his first year on the job—ranging from reserved indoor parking, adjusted timing on elevator doors, a grab handle in the rest room and transportation to court appearances—all of which were granted.

He sued because his 31st request—for a personal assistant who would “function as his shadow”—was refused.

On Thursday, an appeals court ruled that the Attorney General’s Office did not violate laws against disability discrimination. The court said deference was due the findings of the Civil Service Commission that an assistant was not warranted because it would not help E.H. address his weak job performance.

When the Americans with Disabilities Act was new, there was hopeful talk among some disability advocates of what some wary employers nicknamed “two-for-one” hiring — demands that a second employee be put on payroll to assist the first. While courts have generally declined to go along with this idea, it is sobering to think the issue might be close enough that the worker’s very poor job evaluations might have mattered one way or the other.

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It’s being led by our perennial-favorite state-AG mentionee (D-Miss.)

Meanwhile: Houston judge reported to have issued what law professor Josh Blackman calls “blatantly unconstitutional” gag order requiring Google not only to remove all records of certain allegations against an individual, but also to refrain from discussing the gag order itself [Houston Chronicle]

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  • Mayor de Blasio settles firefighter bias suit on terms sympathetic to plaintiffs [City Journal: Dennis Saffran and Seth Barron]
  • One way to dodge some Culture War fights: roll meaning of “public accommodation” back to travel, lodgings, places of public amusement, etc. [Andrew Kloster, Heritage] As original/creative expression goes, florists and cake-bakers sometimes outdo NYT’s Greenhouse [Ann Althouse] From Dixie Chicks to Hobby Lobby, few escape hypocrisy when commerce collides with convictions [Barton Hinkle]
  • Department of Education’s Office of Civil Rights investigating Florida’s popular Bright Futures college scholarship program [Orlando Sentinel]
  • Do EEOC mediators overstate risk of legal action to extract big settlements from employers? [Bloomberg BNA, Merrily Archer on survey] New Colorado expansion of employment liability bad news for large and small employers alike [Archer]
  • “Religious exemptions — a guide for the confused” [Eugene Volokh]
  • Washington Post columnist repeats myth that Lilly Ledbetter “did not know she was being paid less than male counterparts” until after statute of limitations had run; Hans Bader corrects [letter to editor]
  • If helping out local people was one reason your town decided to back public housing, you might have been played for suckers [AP on DoJ suit against Long Island town over local preference]

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We mentioned Philip K. Howard’s new book “The Rule of Nobody” the other day. Here’s another excerpt (which also appeared in the Wall Street Journal’s “Notable and Quotable”:

The 2009 economic stimulus package promoted by President Obama included $5 billion to weatherize some 607,000 homes—with the goals of both spurring the economy and increasing energy efficiency. But the project was required to comply with a statute called the Davis-Bacon Act (signed into law by President Hoover in 1931), which provides that construction projects with federal funding must pay workers the “prevailing wage”—basically a union perk that costs taxpayers about 20 percent more than actual labor rates. This requirement comes with a mass of red tape; bureaucrats in the Labor Department must set wages, as a matter of law, for each category of construction worker in each of three thou- sand counties in America. There was no schedule for “weatherproofers.” So the Labor Department began a slow trudge of determining how much weatherproofers should be paid in Merced County, California; Monmouth County, New Jersey; and several thousand other counties. The stimulus plan had projected that California would weatherproof twenty-five hundred homes per month. At the end of 2009, the actual total was twelve.

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Mark Steyn revisits the subject of Kinder Surprise eggs, the chocolate-wrapped toys popular in much of the rest of the world but forbidden under a distinctive U.S. law which bans the “embedding of non-nutritive items” in confectionery. According to the Department of Homeland Security, border agents confiscated more than 25,000 of the prohibited treats in more than 2,000 seizures during one recent year. Earlier here (Steyn: “The real choking hazard is the vise-like grip of government”), here, etc.

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For those who freaked out at those headlines Thursday, Daniel Fisher at Forbes has a corrective to the New York Times’ latest story advancing the trial lawyer campaign against arbitration. More: Eric Goldman. Sequel: General Mills quickly withdraws new policy, perhaps reasoning that even when the New York Times is wrong, a consumer marketing company really can’t win trying to argue with it.

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Over “incessant filing of frivolous lawsuits.” [Lowering the Bar, opinion in Conrad v. AM Community Credit Union et al. (PDF)]

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I’ve got a new post at Cato about the latest federal court smackdown of overreaching enforcement by the Obama administration, this time in a Department of Labor prosecution regarding a Texas company’s wage-and-hour classification. I mention some greatest hits of the past couple of years reversing DoL, the EEOC, the EPA and other agencies, and suggest that a useful step might be for regulated businesses to contest unreasonable cases more often rather than, as is so often the norm now, paying to get them over with.

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Time mag asked arch-leftwinger Barbara Ehrenreich about the best single way to reduce income inequality. I’d never have dreamed that David Henderson would agree with the answer she gave — or that I would too. More here on Ehrenreich’s views on the “criminalization of poverty” (which, not surprisingly, head off in directions very different from mine once you’re past the initial area of agreement).

One reader points out that laws against behaviors like driving with broken headlights or lapsed insurance are of universal benefit and improve road safety. But I don’t think Ehrenreich’s point (or Henderson’s or mine) amounts to “let’s legalize driving with broken headlights.” Not so long ago, many petty offenses of traffic and street life were illegal but the consequences of violation were much less harsh. The other day I got a transponder toll in the mail amounting to maybe $10, which would jump to $150+ if I didn’t get in a payment within 20 days; being your basic organized middle-class person, I dashed off a check that same day. Add one complicating factor — say I was a person whose mail was forwarded to me from another address — and it would have been a closer thing.

Why has government chosen to escalate once-petty fines over the past couple of generations? 1) It wants revenue and likes the idea of making agencies self-financing or better; 2) it listens more closely to its own agencies than to the populace; 3) when middle class policymakers (as they nearly always are) consider the issue, they think of what level of fine it would take to deter someone like themselves and worry less about whether fines at that level might capsize the little guy or small business (I hear often about how this framework of punitive small fines is a key deterrent to trying to run a small business with a couple of delivery trucks and maybe an urban commercial building or two to run up inspection and property fines.)

The reformist consumer finance literature, to which Elizabeth Warren was a big contributor as an academic, and with which Ehrenreich is no doubt well acquainted, decries $30 late fees and 20 percent interest rates as a business plan by which credit card companies can turn small debts into big ones at the expense of persons without middle-class money habits and skills. Which raises the question: why spend so much time belaboring the banks if government’s own policy on late fees, bounced checks, etc. is going to be so much less merciful? (& welcome Radley Balko readers)

P.S. An example? South Carolina man says he didn’t realize you needed to pay for a soda refill at VA hospital canteen. Contemplated consequences: $525 fine, federal criminal conviction, unable to return to workplace. (Update: following national publicity, let off with warning).

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Megan McArdle has some thoughts on the role of changing divorce law among a broader shift of social mores and expectations on marriage, cohabitation, and childbearing in and out of wedlock.

Note, however, that reformers might take an interest in reconsidering the no-fault revolution from many motives other than a simple wish to discourage the rate of divorce across the board. (Contrary to some imaginings, critics of no-fault are a diverse crew, including social scientists, economists, lawyers and judges writing from secular, liberal, and classical-liberal as well as religious-conservative standpoints.) Some see no-fault as deficient in fairness in deciding between the claims of offending and innocent spouses. Some worry that it results in a first-mover advantage in favor of whichever spouse initiates the unraveling of a marriage (by removing assets, for example) and that such an advantage might have destructive effects if not corrected for in some way. And while (as McArdle argues) an expectation of marriage as being a hassle to leave might discourage entry into the institution, it is also possible that an expectation of it as being easily dissolved and lacking in real security might discourage entry by other persons.

“No-fault,” incidentally, may not be the most accurate term for the new system (“unilateral” would be more precise, sometimes combined with “relatively speedy”). While fault as such in contested cases may be kicked out the front door, it very often comes back in through the window in the form of arguments about parental fitness, appropriate asset division and other issues that are still open for argument in court.

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