Author Archive

Update: “Judge tosses suit from caddies who claimed they were ‘human billboards'”

Following up on a post from a year ago: “Caddies lost their class-action lawsuit against the PGA Tour when a federal judge in California ruled they signed a contract with the tour that requires them to wear bibs as part of their uniform and cannot claim that corporate sponsorship on the bibs makes them human billboards.” [AP/Fox]

ABA: lift ban on credit for paid externships

ABA Journal via Paul Caron/TaxProf:

A proposed change in the law school accreditation standards that would lift the ban on students receiving academic credit for paid externships has drawn a lot of comment—and much of the comment is in opposition to lifting the ban.

Under the current standards, law students are barred from receiving both credit and pay for an externship. But the governing council of the ABA Section of Legal Education and Admissions to the Bar has approved for notice and comment a proposal that would eliminate the ban.

Comments on the proposal are here; for a student-eye recounting of the possible advantages of the proposal, scroll (h/t Ilya Somin) to the fifth letter in the series, by Peter Donohue, editor in chief of the George Mason Civil Rights Law Journal.

It is somewhat surprising (in a good way) to find the ABA inviting such a shakeup of the way things are done in legal academia, and less surprising to find many faculty resisting.

Just as other licensed professionals typically have an incentive to resist competition from alternative providers — lawyers to resist the incursions of paralegals, physicians those of RNs and pharmacists, and so forth — so professional educators have an incentive to resist competition from on-the-job training. That helps explain why the organized providers of government-licensed education are so keen to draw and enforce boundaries in this area: nothing for which the student gets paid should count toward obligatory time spent in education. And yet some employers would bid significant sums for the work efforts of lawyers in training, and that compensation in turn could make a dent in the typically high cost of obtaining a law degree. “Any proposed changes will come back to the council for final consideration in March.”

Supreme Court and constitutional law roundup

  • Constitutional right to teach children in a foreign language: the story of Meyer v. Nebraska, 1922 [Dave Kopel]
  • Court to address Indian law issues in three cases this term: right of counsel in tribal courts, conditions of removal from tribal to federal courts, tax authority on former tribal land [Daniel Fisher]
  • As constitutional conservatives go, Rand Paul and Ted Cruz are at odds on Lochner. Why that’s important [Roger Pilon]
  • 2013 Kiobel v. Royal Dutch Shell decision hasn’t killed off Alien Tort cases, especially not in Ninth Circuit [Julian Ku/Opinio Juris on rejection of certiorari in Doe v. Nestle, background John Bellinger/Lawfare]
  • Textbook-resale case from 2013 term, Kirtsaeng v. John Wiley & Sons, is coming back for a ruling on fee award standards in copyright cases [ArsTechnica]
  • High court will review federal court’s jurisdiction to resuscitate denied class certification [Microsoft v. Baker, Ninth Circuit ruling; Fisher]
  • “Maryland Attorney General Brian Frosh: If You Don’t Want To Be Tracked, Turn Off Your Phone” [Motherboard/Vice on stingray surveillance]

Lyndon McLellan, target of structuring/forfeiture case, beats IRS

We covered this case last year:

…despite the U.S. Department of Justice’s promise to stop seizing bank accounts in future in cases where violations of laws against bank deposit “structuring” (keeping them under the $10,000 reporting threshold) are not connected with any underlying crime, it continues to hold on to money already in the seizure pipeline. That includes the $107,000 grabbed from Lyndon McLellan, who runs L&M Convenience Mart in rural North Carolina, according to the New York Times. “You work for something for 13, 14 years, and they take it in 13, 14 minutes.”

To make matters worse, a “prosecutor wrote menacingly to McLellan’s lawyer about the publicity the case had been getting,” warning that press attention “ratchets up feelings within the agency.”

In June of last year the IRS agreed to drop the charges and return McLellan’s money, and now a federal judge has told the agency to pay the store owner $20,000 for his legal costs, according to my Cato colleague Adam Bates, who has other links and thoughts on the case: “If the government cannot prove beyond a reasonable doubt that a person engaged in criminal activity, it should not be able to punish them as if they’re guilty.”

“Theater of the Absurd: The NLRB Takes on the Employee Handbook”

In a 45-page booklet, the U.S. Chamber talks back at the National Labor Relations Board over its push in recent years to forbid, as violations of labor law, a wide range of employer workplace rules:

Through a series of decisions and official guidance, the NLRB has undertaken a campaign to outlaw heretofore uncontroversial rules found in employee handbooks and in employers’ social media policies—rules that employers maintain for a variety of legitimate business reasons… The NLRB has gone to outlandish lengths to find commonsense workplace policies unlawful … the Board’s irrational interpretations of the law have created a serious headache for employers and employees looking for stability and common sense in labor relations.

More here. Jon Hyman summarizes the areas covered:

* Confidentiality of workplace investigations
* Employee misconduct
* Communications and non-disparagement
* Protection of intellectual property and confidentiality of company information
* At-will disclaimers
* Non-solicitation
* Dress codes

Banking and finance roundup

New Hampshire decides: Senator Venezuela vs. Citizen Vuvuzela

Our coverage of Sen. Bernie Sanders (I-Vt.), winner of the Democratic primary in New Hampshire, is here, including gun liability (more), Citizens United, Glass-Steagall, and Supreme Court issues.

Our coverage of businessman Donald Trump, winner of the Republican primary, is here, and includes coverage over many years of his activities as a litigant as well as his political career.

Are the climate-speech subpoenas constitutional?

New York Attorney General Eric Schneiderman is pursuing an investigation of the Exxon Corporation in part for making donations to think tanks and associations like the American Enterprise Institute and American Legislative Exchange Council, which mostly work on issues unrelated to the environment but have also published some views flayed by opponents as “climate change denial.” Assuming the First Amendment protects a right to engage in scholarship, advocacy, and other forms of supposed denial, it is by no means clear that information about such donations would yield a viable prosecution. Which means, notes Hans Bader of the Competitive Enterprise Institute, that the New York probe raises an issue of constitutional dimensions not just at some point down the road, but right now:

A prolonged investigation in response to someone’s speech can violate the First Amendment even when it never leads to a fine. For example, a federal appeals court ruled in White v. Lee, 227 F.3d 1214 (9th Cir. 2000) that lengthy, speech-chilling civil rights investigations by government officials can violate the First Amendment even when they are eventually dropped without imposing any fine or disciplinary action. It found this principle was so plain and obvious that it denied individual civil rights officials qualified immunity for investigating citizens for speaking out against a housing project for people protected by the Fair Housing Act.

In another case, in which a company had been sued seeking damages over its participation in trade-association-related speech, a federal appeals court found that the pendency of the lawsuit all by itself caused enough of a burden on the firm’s speech rights that the court used its mandamus power to order the trial judge to dismiss the claims, a remarkable step.

Moreover, Bader writes, a string of federal precedents indicate that the constitutional rights Schneiderman is trampling here are not just Exxon’s but those of the organizations it gave to, which have a right to challenge his action whether or not the oil company chooses to do so:

These groups themselves can sue Schneiderman under the First Amendment, if Schneiderman’s pressure causes them to lose donations they would otherwise receive. Government officials cannot pressure a private party to take adverse action against a speaker.

Meanwhile, writing at Liberty and Law, Prof. Philip Hamburger of Columbia Law School takes a different tack: the subpoenas imperil due process and separation of powers because they issue at the whim of Schneiderman’s office. Earlier ideas of constitutional government “traditionally left government no power to demand testimony, papers, or other information, except under the authority of a judge or a legislative committee.” In more recent years executive subpoena power has proliferated; so has the parallel power of lawyers in private litigation to demand discovery, but the latter at least in theory goes on under judicial supervision that can check some of its abuse and invasiveness. Extrajudicial subpoenas by AG offices are particularly dangerous, Hamburger argues, because of their crossover civil/criminal potential: the targets do not enjoy a high level of procedural protection when “attorneys general claim to be acting merely in a civil rather than a criminal capacity,” yet the same offices can and do threaten criminal charges. Especially dangerous is New York’s Martin Act, a charter for general invasion of the private papers of anyone and anything with a connection to New York financial transactions.

An attorney general’s concern about fraud or the “public interest” is no justification for allowing him to rifle through private papers. When he thereby extracts the basis for a criminal prosecution, he evades the grand jury process. When he thereby lays the groundwork for a civil enforcement proceeding, he evades the due process of law, for there ordinarily is no discovery for a plaintiff until he commences a civil action. Even worse, when a prosecutor uses a subpoena to get a remunerative settlement, it is akin to extortion — this being the most complete end run around the courts.

Previously on the probe here and here (and earlier here and here), and on the New York attorney general’s office here and here.

[cross-posted from Cato at Liberty]

February 10 roundup

Archfiend of misogyny steps forth, Internet calls cops

When a self-promoter trolls the online outrage machine, freedom of travel and assembly wind up as collateral damage [Elizabeth Nolan Brown, Reason on the “Roosh” furor and resulting shut-him-down efforts; Daily Mail] The Washington Post’s Caitlin Dewey speaks to Southern Poverty Law Center official Heidi Beirich who seems to find it regrettable that “a guy with a blog” should get so much free publicity, seeming to forget who gave him so much of it.