Author Archive

Supreme Court and constitutional law roundup

ALI turns down proposal to redefine criminal sexual assault

“In a rebuke to a feminist idea that has migrated from college campuses to mainstream culture, an influential legal group overwhelmingly rejected Tuesday a provision that would have endorsed an ‘affirmative consent’ standard for the purpose of defining sexual assault.” [Bradford Richardson, Washington Times] The American Law Institute proposals, which would have significantly expanded the definition of criminal sexual assault, had drawn sustained criticism from some civil libertarians [Stuart Taylor, Jr., John Fund, Ashe Schow/Washington Examiner; more, Scott Greenfield first and second posts] The ALI project in general is supposed to be aimed at restating courts’ current consensus in applying and interpreting the law, but often becomes the scene of efforts to tug the law in one direction or another. “Affirmative consent” has made inroads as a standard in the college disciplinary setting.

Sweden: image vs. reality

Please update your mental image of Scandinavian policy: “Being more like modern Sweden actually means deregulation, free trade, a national school voucher system, partially privatized pensions, no property tax, no inheritance tax, and much lower corporate taxes. Sorry to burst your bubble, Bernie.” [Johan Norberg, Reason; Daniel Mitchell, Cato]

While we’re at it, Sweden has fewer than one-sixth as many lawyers per capita as the U.S., in part because its rules of civil procedure are drawn so to discourage needless legal combat.

Judge: private firm must pay damages over website not usable by blind

A number of court precedents suggest that private websites are generally not among the public accommodations and places of business subject to the handicap accessibility mandates of the Americans with Disabilities Act. Disabled rights litigators, assisted by the Obama administration, have been battering away at these precedents for years, and in March they secured a significant win as a California Superior Court judge ordered a private company, Colorado Bag ‘N’ Baggage, to pay $4,000 to a blind customer and revise its website. Notably, the judge’s ruling came in response to a summary judgment motion by the plaintiff, implying that in his view the business’s defense was not strong enough to justify trial [Bob Dorigo Jones, Jacob Gershman/WSJ Law Blog, Amanda Robert/Legal NewsLine/Forbes] If the notion of legally obligatory web accessibility were accepted, quite a large share of existing websites would be far out of compliance, with likely consequences including the emergence of cash-seeking filing mills and pressure to take down countless existing websites used for business, community and nonprofit activity, journalism, and so forth. More at our web accessibility tag.

For Prince’s name, perpetual posthumous protection?

In the aftermath of Prince’s death, lawyers representing the entertainer’s estate administrator have been pushing a posthumous right of publicity law in Minnesota. The proposed PRINCE Act (“Personal Rights In Names Can Endure”) would forbid the use of an individual’s name “in any medium in any manner” without consent, which critics say makes it a rare instance of a law that actually violates itself. [David Post/Volokh, Jacob Gershman/WSJ Law Blog]

Free speech roundup

  • Why Josh Blackman signed Wednesday’s New York Times ad protesting the AGs’ investigation and subpoenas on climate advocacy;
  • Proposed revision of ABA Model Rules of Professional Conduct barring discrimination by lawyers could have major anti-speech implications [Eugene Volokh]
  • “Game Studio’s Plan To Deal With Critic Of Games: Sue Him To Hell” [Timothy Geigner, TechDirt]
  • The Citizens United case was correctly decided, says Michael Kinsley. And he’s right. [Vanity Fair]
  • Fifth Circuit ruling prescribes attorney fee award after defeat of frivolous trademark litigation under Lanham Act [Popehat]
  • So what’s a good way to support teaching evolution without climbing in bed with folks who put free speech in scare quotes? [National Center for Science Education on Twitter: “Tobacco Science, Climate Denial, and ‘Free Speech'”]

Donald Trump vs. the Washington Post

Do you think Donald Trump is the first U.S. politico to menace publishers over bad coverage? Not even close. My new Cato piece cites a few examples from a depressingly long history. Plus: reprinted at Newsweek.

Bonus: Sen. Sherman Minton (D-Ind.) who put forth the remarkable proposal to make it “a crime to publish anything as a fact anything known to be false,” and who had led a Senate committee’s investigation of the Gannett newspaper chain over its (then) Republican-leaning politics, was later nominated by President Harry Truman to be an associate justice on the U.S. Supreme Court, where he served for seven years and became a leading exponent of judicial deference to the executive branch.

Deirdre McCloskey on the bathroom battle

I was hoping/waiting to hear what eminent economist Deirdre McCloskey, born Donald, would have to say about the transgender bathroom flap. Wish granted, thanks to Warren Coats and his blog:

Before I “passed” (surgery, working at it) I was frightened to go into a ladies’ room, but I could hardly go into a men’s room in a dress. You can imagine how dangerous that would be! I was allowed to put Female on my driver’s license in tolerant Iowa in 1995. But you are right that it is unwise in such matters if nothing much is going wrong to stir things up. I’ll bet now that Iowa has rules from the state. Then it was left to Iowans’ ample common sense. My passport F was tougher—I wept to the woman at the New Hampshire passport office, and she relented and sent my passport the day before I was boarding a flight to go to Holland to teach for a year, in January 1996. So the State Department unofficially was cool. A year later I tried to get Harvard to change my degree from Harvard College class of ’64 to the women’s college, Radcliffe. The male dean I spoke to thought not. I whined, “But the State Department had no problem giving me an F passport.” With a smile in his voice he replies, “But Harvard is older than the State Department!”

“There’s more on all this in my memoir of my transition, Crossing: A Memoir (1999 University of Chicago Press).

“The bathroom “issue” is entirely phony. It has never been a problem. Anyway, if men wanted to sneak in (they don’t), they could always have done so, with or without North Carolina’s law. How is it to be enforced? DNA testing by the TSA at every bathroom door? Anyway, your house has a unisex bathroom, I presume, and in Europe they are not entirely uncommon—after all, the stalls have doors. Etc, etc. On both sides it is just a club to beat up the other side in the silly Cultural Wars, and to make people hate and disdain each other. Adam Smith would not have approved.”

Meanwhile, Hans Bader argues that the Obama administration stands on very shaky ground both legally and prudentially in trying to impose a single nationwide set of practices by way of Title IX and funding cutoffs, aside from whether that set of practices is in fact the right one. More: Richard Epstein/Hoover, Roger Pilon/Cato, Robby Soave/Reason, Neal McCluskey (no relation)/Daily Caller, and earlier here and here on the North Carolina law.

May 18 roundup

  • Do behavioral economists acknowledge policymakers’ own foibles? Not often it seems [Niclas Berggren via Bryan Caplan]
  • China, not unlike our own attorney general-environmentalist alliance, is cracking down on the work of what it deems ideologically harmful nonprofits [ABA Journal]
  • Barking mad: new ABA ethics proposal would deem it professional misconduct for lawyers to discriminate on various grounds, including “socioeconomic status,” in choosing partners, employees and experts [Eugene Volokh, Sara Randazzo/WSJ Law Blog]
  • Virginia still has a law requiring annual safety inspection of your car, and it’s still a bad idea [Alex Tabarrok]
  • Court in Canadian province of New Brunswick rules against honoring will that left estate to racist group [CBC]
  • From the left, Paul Bland sees Monday’s Supreme Court decision in Spokeo v. Robins as a big loss for business defendants [Public Justice, earlier] Contra: Andrew Pincus, plus more from WLF.

Feds overreach in prosecution of FedEx for failure to snoop

“Federal prosecutors have accused FedEx of knowingly shipping illegal drugs in interstate commerce and laundering money by merely doing its job: delivering packages (in this case, from online Internet pharmacies) to their intended recipients and getting paid for the service. …To avoid the very sort of ‘gotcha’ prosecution at issue here, Congress inserted exceptions for common carriers in each of the relevant statutes” authorizing shipment of prescription medications and controlled substances when done in the usual course of business.

While courts have generated no case law authoritatively interpreting these exemptions in the Controlled Substances Act (CSA) and the Food, Drug, & Cosmetic Act (FDCA), “the need to do so had never presented itself because no prosecutor had ever dared to bring such a dubious indictment in the previous 45 years of the CSA’s existence.” [Cory Andrews, Washington Legal Foundation; earlier (“Feds indict FedEx for not snooping into packages”)]