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Walter Olson

Needed: a post-Frieden CDC

by Walter Olson on October 24, 2014

cdc_ebola2x

Bloomberg’s nanny-in-chief was never the right choice to lead the Centers for Disease Control, much less with an actual epidemic in sight, argues the New York Sun:

…it was the former mayor of New York City who gave the nation Thomas Frieden, who is one dangerous doctor and is the middle of the catastrophe. … Because of the government’s blunders in the Ebola emergency, people are starting to look a harder look at Bloombergism.

… the CDC budget has soared more than 200% since 2000 to $7 billion. The Centers, moreover, are squandering this lucre (which was seized from the American public via taxes) on regulating motorcycle helmets, video games, and playground equipment, as if any of that has anything to do with diseases. No wonder that when Ebola hits, the CDC seems to be staggering….

Mr. Bloomberg is enormously invested in this through the school of public health at Johns Hopkins. Do Americans want a cabal of left-wing, government doctors in Atlanta engineering our playgrounds, motorcycle helmets, and video games? No one plays a video game or rides a motorcycle for his health….

It is important that the Ebola emergency is starting to get people thinking about the first principles of the Centers for Disease Control.

Read the whole thing. Related: Heather Mac Donald and Steve Malanga, City Journal; Jacob Sullum.

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Really, the headline is as good an introduction to this tangled web as any: “Clifford firm contributes $150K to unseat Justice on the same day he’s in court saying campaign money corrupted Supreme Court.” [Madison County Record, related post ten years ago] Also, Illinois election officials say the state may need to have a slow Election Night [The Southern Illinoisan]

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Food roundup

by Walter Olson on October 24, 2014

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Now this is welcome: the New York Times (via Ronald Bailey) has a column by George Johnson jumping off from the question of whether locating a giant telescope on Mauna Kea would unfairly desecrate the religious and ancestral heritage of (some) native Hawaiians. Johnson notes:

While biblical creationists opposing the teaching of evolution have been turned back in case after case, American Indian tribes have succeeded in using their own religious beliefs and a federal law called the Native American Graves Protection and Repatriation Act to empty archaeological museums of ancestral bones — including ones so ancient that they have no demonstrable connection to the tribe demanding their reburial. The most radical among them refuse to bow to a science they don’t consider their own. A few even share a disbelief in evolution, professing to take literally old myths in which the first people crawled out of a hole in the ground.

In this turn back toward the dark ages, it is not just skeletal remains that are being surrendered. Under the federal law, many ceremonial artifacts are also up for grabs. While some archaeologists lament the loss of scientific information, Indian creationism is tolerated out of a sense of guilt over past wrongdoings.

Even some scientists bow and go along in the spirit of reparations, while admitting the loss to human inquiry and future knowledge. Earlier on NAGPRA and the Kennewick Man controversy here, here, etc.

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Prof. Bainbridge flags this disturbing Wall Street Journal piece:

The Securities and Exchange Commission is increasingly steering cases to hearings in front of the agency’s appointed administrative judges, who found in its favor in every verdict for the 12 months through September, rather than taking them to federal court.

Previously, the agency had tended to use the ALJs (administrative law judges) for relatively cut-and-dried enforcement actions, while taking more complex or cutting-edge disputes to federal court. Now, following the Dodd-Frank expansion of its powers, it prefers ALJs even for many complex and demanding cases arising from charges such as insider trading. Defendants enjoy a range of protections in federal court that are not provided in administrative litigation, including juries as well as the presence of federal judges who are independent of agency control, held to a more demanding ethical code, and drawn generally from higher and more sophisticated circles within the legal profession. Read the entire Bainbridge commentary, with followups linking Henry Manne (adjudicatory actions are ways to avoid the more demanding process of rulemaking) and Keith Bishop (current system open to constitutional challenge?).

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October 23 roundup

by Walter Olson on October 23, 2014

  • I’m quoted by Nicky Woolf of Great Britain’s Guardian on the police militarization angle in Keene, N.H. civil disturbances (also: Van Smith, Baltimore City Paper). Also quoted regarding the ominous move to heavy armaments of Wisconsin prosecutors investigating their political opponents in the dawn-raids “John Doe” proceeding [Watchdog, and second post, earlier] Humor in The New Yorker from Bruce McCall ["Pentagon Cop Aid Hits Snags"] And here’s a previously unlinked Cato panel last month on cop militarization with David Kopel, Mark Lomax, and Cheye Calvo, moderated by Tim Lynch;
  • Australia prime minister declares “repeal day” with “bonfire” of regulations [Jeff Bennett and Susan Dudley, Cato Regulation mag; earlier on Minnesota legislative "unsession" to dump outmoded or pointless laws]
  • “After dawdling for a year, panel tosses bogus complaint against Judge [Edith] Jones” [@andrewmgrossman on Houston Chronicle via Howard Bashman, Richard Kopf, Tamara Tabo, earlier here, here, and here]
  • Making waves: Michelle Boardman review of Margaret Radin book on boilerplate, adhesion contracts, fine print [Harvard Law Review, SSRN]
  • Why litigation lobby could cost Democrats Senate majority this year [Tim Carney]
  • Online-services companies, better not do business in Maryland since the state has a very special law that one law professor believes sharply restricts your customer research [Masnick/TechDirt]
  • Picking Thomas Perez as Attorney General would (or should!) ignite firestorm of opposition. Is that why President’s waiting till after Nov. 4? [Washington Examiner]

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Idaho Hitching Post case

by Walter Olson on October 22, 2014

I was preparing a post on the case from Idaho in which husband and wife Donald and Evelyn Knapp have pre-emptively sued (complaint, motion for TRO) to prevent the application of the city of Coeur d’Alene’s public accommodation law from being used to require their wedding chapel business, the Hitching Post, to handle same-sex weddings. In the mean time Andrew Sullivan has done a post pulling together most of what I planned to say, so go read that instead.

Sullivan quotes my observation on Facebook:

I will note that I have learned through hard experience not to run with stories from ADF (Alliance Defending Freedom) or Todd Starnes without seeking additional corroboration. As a libertarian, I oppose subjecting this family business to any legal compulsion whatsoever, but it’s also important (as in the Dallas pastors case) to get the facts straight before feeding a panic.

While I hope the Knapps succeed in establishing their exemption from this law, I am still shaking my head at the ADF’s framing efforts, which via Starnes set off a predictable panic about dangers to religious liberty (see also, last week, on the Houston pastors subpoena). In this instance, those efforts amount to something very akin to hiding the ball, including (as cited by Sullivan) the quiet legal revamping of the business onto a religious basis in recent weeks and the silent removal of extensive language on its website that until earlier this month had promoted the chapel as a venue for civil, non-religious wedding ceremonies.

Now, the Knapps are free (or should be, in my view) to change their establishment’s business plan overnight to one that welcomes only ceremonies consistent with Foursquare Evangelical beliefs. But shouldn’t their lawyers be upfront that this is what’s going on? Especially since even sophisticated commentators, let alone casual readers, are construing the city of Coeur d’Alene’s legal position by reference to what its lawyer said back in May, when the Knapps were running the business the old way. (Back then, as Doug Mataconis notes, coverage included the following: “Knapp said he’s okay with other ministers performing marriages at their facilities but it is not something he will do.” — a position that appears to have changed, again without acknowledgment.)

Let’s be blunt. ADF, which was involved in helping the Knapps revamp their enterprise onto a religious basis, is by the omissions in its narrative encouraging alarmed sympathizers to misread the situation.

Could the city of Coeur d’Alene force the Knapps to provide ministerial officiation of same-sex weddings? As Eugene Volokh explains, in a post based on the initial reports, the clear answer is no, since such compulsion would be an unconstitutional forcing of speech and “would also violate Idaho’s Religious Freedom Restoration Act.”

Besides those two distinct layers of legal protection, they are likely to benefit from a third, noted in this May article in the Spokane Statesman-Review: “religious entities are exempt from the Coeur d’Alene ordinance” and “pastors in the city are not obligated to perform same-sex weddings.” (Todd Starnes links to the Spokane article, but makes no reference to these bits.)

Possibly — the statements of municipal lawyer Warren Wilson in May are ambiguous — the city saw the then-secular Hitching Post as obliged not only to provide the equivalent of a hall rental to same-sex applicants, and sell them silk flowers and other incidentals, but also connect them with an outside officiant sympathetic to their union to pronounce the ceremony. It is by no means clear that the city would apply the same requirements to the Knapps’ newly revamped and far more explicitly religious Hitching Post. It is even more of a stretch to imply, as Starnes does, that the city is on the verge of “arresting” the Knapps.

Even absent any obligation to officiate, it seems to me that a family business in this situation has at least as sympathetic a case as the cake bakers, wedding photographers, invitation engravers, and hall providers who sought exemptions in previous episodes. But really, isn’t our libertarian case strong enough that it can stand on an accurate description of what’s actually going on?

Update: Via Eugene Volokh, Coeur d’Alene’s attorney has now sent a letter making clear the city’s position that even the newly reorganized Hitching Post is subject to the law because the law’s religious exemption covers by its terms “nonprofit” religious corporations, which theirs is not. Volokh argues, I think plausibly, that this position will fail in court if applied to compel the provision of ceremonies because both the constitutional right against forced speech and the state Religious Freedom Restoration Act extend in their application beyond nonprofits. Indeed, the city lawyer’s own letter cites a provision, section 9.56.040, in the city’s anti-discrimination ordinance, stating that the ordinance “shall be construed and applied in a manner consistent with first amendment jurisprudence regarding the freedom of speech and exercise of religion”. This provision would appear not merely to permit, but to require, the city to back off enforcement efforts that conflict with speech and religious freedoms, whether exercised in a non-profit or for-profit setting. The letter — which in its reference to “services” draws no distinction between functions like hall and equipment rental, and expressive ceremonial services — would thus appear to put the city on a collision course with the speech and religious freedoms of the Knapps.

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The Emergency Physicians Monthly columnist, often linked in this space, on a case noted in our open thread last week:

From comments at Overlawyered.com …

Employee of a surgicenter goes to facility for a colonoscopy. When he wakes up, he was wearing pink underwear. As a result, he suffered extreme emotional distress, humiliation, loss of wages and loss of earning capacity. He is now suing.

While I probably would have laughed off a prank like this, I can understand why some people would have been upset. But suffering a loss of earning capacity from being dressed in pink panties as a prank? I’d like to see how that happened.

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Liability roundup

by Walter Olson on October 22, 2014

  • How legal doctrine changes in a state-based system: “The Diffusion of Innovations in Tort Law” [Kyle Graham]
  • Are courts growing (appropriately) disillusioned with cy pres? [James Beck and Rachel Weil, WLF; Beck, D&DL, on Redman v. RadioShack]
  • “Asbestos lawyers want $2.5 million for losing fight to keep Garlock records sealed” [@DanielDFisher on Legal NewsLine report] “Third Circuit rules against plaintiff who ‘just knew’ asbestos was used in Navy vessels” [Heather Isringhausen Gvillo, LNL]
  • Eric Alexander on the runaway $9 billion Actos verdict [Drug and Device Law, citing Dr. David Kessler, former FDA chief, as "plaintiff's mouthpiece"; earlier on Actos/Takeda case]
  • “Third-Party Bad Faith Claims Add $800M to Florida Auto Insurance Costs: IRC” [Insurance Journal]
  • Discussion of proposals to change contributory negligence for bicyclists in D.C., mucho comments [Greater Greater Washington]
  • “Missouri Supreme Court Invalidates State’s Legislative Cap on Punitive Damages” [Mark Behrens]

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Author Patricia Marx decided to brazen her way through New York restaurants, museums, high-end fashion shops, and other institutions with five “un-cuddly, non-nurturing animals” such as a turtle, snake, and turkey, and some therapist paperwork that was easy enough to procure. [New Yorker] Aside from writing hilariously, she’s well informed about the Americans with Disabilities Act interplay:

Why didn’t anybody do the sensible thing, and tell me and my turtle to get lost? The Americans with Disabilities Act allows you to ask someone with a service animal only two questions: Is the animal required because of a disability? What work or task has the animal been trained to perform? Specific questions about a person’s disability are off limits, and, as I mentioned, people are baffled by the distinction between service animals and emotional-support animals.

Len Kain, the editor-in-chief of dogfriendly.com, a Web site that features pet-travel tips, said, “The law is fuzzy. If you ask one too many questions, you’re in legal trouble for violating the Americans with Disabilities Act and could face fines of up to a hundred thousand dollars. But, if you ask one too few questions, you’re probably not in trouble, and at worst will be given a slap on the wrist.”

We’ve been tracking the issue of real and imagined service animals for a long time.

P.S. As I should have noted, changes in federal rules a few years back attempted to lay out a bright-line rule that animals other than individually trained dogs and some miniature horses do not enjoy service animal status under the ADA. Unless merchants have reason to fear separate liability under differing state or municipal versions of discrimination law, they should therefore be on firm ground in rejecting alpacas, reptiles, or turkeys — which of course assumes they are up on the status of the federal regs. More: Scott Greenfield.

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Horror story in Queens points up flaws of the city’s deed-transfer system, and also of its pro-tenant housing court regime: “After Darrell Beatty failed to appear in August, a judge approved an eviction, but it was stayed last week when Beatty claimed he had health problems.” [New York Post]

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Politics roundup

by Walter Olson on October 21, 2014

  • Texas trial lawyer lobby has attacked Greg Abbott on theme of his accident for years without success, Wendy Davis would have been smarter to tell ‘em no [Politico]
  • Wondering about ObamaCare rate hikes? You’ll get to find out right after the election [Washington Times]
  • “Four more years of ‘pay-to-play’ if DeWine returns as Ohio AG, says Dem challenger” [LNL]
  • Blades concealed? Environmental group’s Iowa, Colorado attack ads play bad cop to wind lobbyists’ good cop [Tim Carney]
  • “W.Va. trial lawyers’ campaign donations near $600K” [W.V. Record]
  • With all the serious issues in the Maryland governor’s race, what’s this guy doing writing a parody song about Anthony Brown’s “Frederickstown” gaffe? [Free State Notes]
  • “Dear Trial Lawyer Colleague, One of our own, Bruce Braley, is in the fight of his life” [Joel Gehrke, earlier]

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Kansas: “A federal jury Tuesday awarded a former McPherson police officer who was found sleeping on duty almost $1 million in wages and damages. Matthew B. Michaels alleged the city violated his civil rights, the Americans with Disabilities Act, the Family Medical Leave Act and the Kansas Wage Payment Act. He was fired from the McPherson Police Department in July 2012. Michaels said he was discriminated against because of a sleep apnea disability.” [McPherson Sentinel]

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Wilkes-Barre, Pennsylvania: “A jury in a Luzerne County civil case ruled that PennDOT was partially responsible for a deadly crash in 2011 that killed a 15-year-old girl, even though the driver of the SUV was driving at roughly twice the speed limit and did not have a driver’s license.” While the driver admitted he was going nearly 90 miles an hour when he lost control, the family’s lawyer “told jurors in closing arguments that PennDOT’s own manuals showed Suscon Road needed more so-called chevron signs that reflect light and warn of an upcoming sharp curve.” [WNEP]

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Schools roundup

by Walter Olson on October 20, 2014

  • Oklahoma school district agrees to pay survivors of teen who drove drunk [Tulsa World]
  • “The Evidence on Universal Preschool” [David Armor, Cato]
  • Things you can hit with a Title IX complaint for doing: fighting academic boycott of Israel [Ben-Atar, Tablet]
  • “It may take the fun and spontaneity out of sex, but I don’t care. That’s for the kids to worry about.” [Ron Kuby quoted in WSJ via Hans Bader; earlier on affirmative consent]
  • Jason Bedrick on lawsuits against school choice [Cato]
  • “The Left/Right Alliance That Legalized Homeschooling” [Jesse Walker, Reason]
  • Kid safety mania: “I suggest just keeping children in large jars until they’re 40.” [Amy Alkon]

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Both houses of the Pennsylvania legislature have passed and sent to Gov. Tom Corbett a bill “allowing judges to issue injunctions, or grant any other ‘appropriate relief’ if there is ‘conduct’ by a criminal ‘offender’ that ‘perpetuates the continuing effect of the crime on the victim.” Such an effect is specified to include, though it is not limited to, a “temporary or permanent state of mental anguish.” The “revictimization remedy” bill, S. 508, is apparently aimed at providing a way to go after a much-cooed-over convicted cop-killer for delivering recorded speeches at college campuses, to the distress of the family of the policeman he shot; Paul Alan Levy describes the bill’s use of the word “conduct” as a “fig leaf” for its intent to restrict speech. What Levy calls the “exceptional breadth” of the bill’s language could imperil or chill a wide range of other activity that might tread on victims’ feelings, such as campaigns to rally public opinion against a conviction or in favor of clemency. The bill, Levy says, “threatens to make Pennsylvania a national laughing stock.” [Consumer Law & Policy; Fox News; NBC Philadelphia; more, Joel Mathis, Philadelphia mag] More on the ever-popular “victims’ rights” cause from Steve Chapman and Roger Pilon.

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Louis Menand on copyright

by Walter Olson on October 18, 2014

At the New Yorker.

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It’s been more than a year since police shot John Geer, and the Fairfax department still won’t release the name of the officer who killed him. This has all been happening in the national media’s own backyard, the suburbs of Washington, D.C. [Robert McCartney, WaPo] In Ferguson, Mo., a delay of several days in releasing the name of the officer who shot Michael Brown was among the grievances that set off protests and confrontations that made world news; yielding to pressure from police associations and unions, many departments have adopted policies against releasing the names of officers involved in shootings either for an initial period or even indefinitely while an investigation remains open. Writes Alexander R. Cohen: “We’ve seen more patriotism from the people of Ferguson than from the people of Fairfax on this issue.”

P.S. Also, from Slate Star Codex, how Ferguson turned into a Referendum on Everything.

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