The IRS targeting scandal: merely “thoughtless” and “careless”?

The Washington Post has published my letter to the editor responding to an editorial that had depicted the Internal Revenue Service targeting episode as merely the “thoughtless” result of “carelessness” and “incompetence.” Yet the scandal wasn’t just the flagging of right-of-center (c)(4) groups for challenge not faced by their left-of-center counterparts, but the outrageous information demands placed on many of those groups, including copies of all literature distributed, transcripts of speeches and radio guest appearances, printouts of all social media output, names of both donors and family members, and more.

Earlier coverage here.

June 22 roundup

  • Funny how the government sometimes regards our time as necessarily worth $15 an hour or more, and other times as worth far less [Coyote]
  • “Trademark lawsuit over LARP archery gets thrown out of court” for lack of personal jurisdiction [Joe Mullin/ArsTechnica, earlier here, etc.]
  • A sucker deal? Consumer class action alleges substitution of squid for canned octopus [Nick Farr, Abnormal Use]
  • Those who knowingly send texts that distract drivers could face liability in Pennsylvania [ABA Journal]
  • Zach Graves, “Optometrists Push For State Laws Blocking Online Eye Exams” [TechDirt]
  • D.C. Circuit upholds net neutrality regulations in a “majority opinion…dripping with agency deference.” [Daniel Lyons, Jonathan Adler, Michael Greve]

See something, say something, then get ready for bias charges or a lawsuit

“The common thread among suspects in these mass shootings and terroristic incidents is not merely that they had mental health issues and an attraction to extremist political ideologies. In each case, the concerned people in those killers’ lives failed to speak up or their warnings were dismissed when they did.” And the structure of legal incentives created by wide-sweeping high-penalty discrimination and privacy laws (which cover categories like mental illness by way of the ADA) may not be entirely unrelated to that phenomenon. [Noah Rothman, Commentary] “No Psych Exam for Orlando Shooter Despite Odd Behavior, FBI Probes” [NBC News]

The furor over Judge Persky’s sentence

“More than a million people have signed petitions demanding the removal of Aaron Persky, the California state judge who sentenced Brock Turner, a Stanford swimmer convicted of three felony sexual-assault counts, to six months in jail, three years of probation, and lifetime registration on the sex-offender list.” How is the furor likely to affect the justice system? Three views from law professors: Jeannie Suk (from whom the above quote is taken), Howard Wasserman, Stephen Bainbridge.

Workplace roundup

  • The proportion of jobs requiring a license has risen from roughly 5 percent in the 1950s to 25 percent now, and why that matters [Edward Rodrigue and Richard V. Reeves, Brookings] Signs of bipartisan agreement that occupational licensing has gone too far [J.D. Tuccille, Reason] And surprisingly or not, it’s emerged as an Obama administration cause [Matt Yglesias, Vox]
  • “25 quick takes (no kidding!) on the EEOC’s proposed national origin guidance” [Robin Shea]
  • “Trial lawyers’ pecuniary interests have shifted our focus toward termination decisions, instead of hiring and promotion practices” [Merrily Archer]
  • Is it lawful to move full-time employees to part-time work to avoid ObamaCare mandates? [Jon Hyman, related]
  • Florida Supreme Court decision spells Christmas for workers’ comp lawyers, and insurers proceed to file 17 percent rate increase, so everyone’s happy [Insurance Journal]
  • “Uber and the gig economy’s existential litigation threat” [Alison Frankel] Labor union grip on state legislature imperils benefits of sharing economy [Steven Greenhut]

FIRE backs suit over Dear Colleague letter

With help from FIRE (the Foundation for Individual Rights in Education), a former University of Virginia law student has sued the U.S. Department of Education Office for Civil Rights arguing that it violated the law in its notorious 2011 Dear Colleague letter requiring many campuses to roll back the procedural rights of students accused of sexual assault. The John Doe complainant argues that the department should at a minimum have put the policy shifts proclaimed in the letter through the notice-and-comment process prescribed for rulemaking, rather than in effect proclaiming them by decree through subregulatory guidance. The letter affected the student’s own case, he argues, because of comments from the retired judge deciding the case that she viewed the evidence as falling short of a clear and convincing threshold, the standard formerly in use, and ruled against him only because the university had complied with federal guidance by dropping its standard to preponderance of the evidence. [Susan Svrluga, Washington Post; Hans Bader, CEI]

“Man pleads guilty in auto crash, then sues city alleging police siren and lights distracted him”

“A man who pleaded guilty to reckless driving in a suburban Chicago accident that injured multiple people last year is now pursuing a lawsuit over the crash.” William Kivit contends in his Cook County lawsuit that the city of Park Ridge “is to blame for the accident, because a city police officer distracted him by activating his siren and lights, causing him to run a red light and strike a car that was legally proceeding through the intersection.” The pursuing officer was himself found to have violated city policy on high speed chases and was terminated; a “police investigation had determined that Kivit was traveling between 79 and 90 mph at the time of the crash.” [ABA Journal]

Environmental roundup

  • Supreme Court should clarify whether agency has discretion to ignore any and all costs in designating Endangered Species Act habitat [Ilya Shapiro and Randal John Meyer on Cato certiorari amicus in Building Industry Association of the Bay Area v. U.S. Dept. of Commerce]
  • Unanimous decision in Corps of Engineers v. Hawkes is second SCOTUS ruling this year against Environmental Protection Agency, and umpteenth blow to its reputation [Ned Mamula, Cato]
  • Speaking of billionaires with vendettas against speech: Tom Steyer of San Francisco pushes New Hampshire attorney general to join probe of wrongful climate advocacy [Mike Bastasch, Daily Caller, earlier here, etc.]
  • “Modern zoning would have killed off America’s dense cities”: 40% of Manhattan’s buildings couldn’t be built today because they would violate a law [New York Times, Scott Beyer/Forbes]
  • And if anyone should know about tainting it’s them: United Nations human rights bureaucracy probes Flint water contamination [Associated Press]
  • Anti-fossil-fuel demonstrators block rail line and the Associated Press can’t find a single critic to quote [related, Shift Washington]

“They oughta be investigated for RICO!”

“[Disliked person or institution] should be investigated for racketeering!” is the sort of slogan “waved around by morons like a big foam finger at a ball game.” But RICO, or the Racketeer Influenced and Corrupt Organizations Act, is a law requiring proof of “the commission of a whole bunch of very specific federal crimes… not just any crime [but] only the ones on the list.” It “is not a … frown emoji. It’s not an exclamation point. It’s not a rhetorical tool to convey you are upset about something…. RICO doesn’t mean ‘this organization advocates things that are bad for society.'” Wait, there’s no RICO predicate act for climate denial or for being the NRA?

Ken White’s RICO explainer at Popehat observes that civil RICO is overused in court both by pro se litigants and by plaintiff’s lawyers who employ it as “a scare tactic and a propaganda tool.” So overused is it that “judges often have standing orders requiring plaintiffs to explain how and why they are claiming RICO — that’s something judges don’t do for almost any other cause of action…. So why do we still have civil RICO? Mostly because Congress is more scared of being called soft on crime than they are interested in reforming time-wasting abusive statutes.” Incidentally, the cutesy acronym for an anything-but-cutesy law is because “Congress likes acronyms like your great-aunt likes porcelain cats.”

P.S. From Jonathan Adler, Greenpeace, RICO, and what goes around comes around.

Justice Dept. case against FedEx collapses mid-trial

Big news from federal court in San Francisco: we’ve repeatedly questioned the U.S. Department of Justice’s adventurous decision to charge Federal Express with crimes for, in essence, refusing to snoop into its customers’ packages and business. From our post two years ago:

The federal government has prevailed on a grand jury to indict Federal Express for servicing what it should have known were illicit online pharmacy operations. FedEx says it repeatedly asked the government to supply a list of shippers it considered illicit so that it could cut off service, but that the government refused; the Department of Justice contends that circumstantial evidence should have been enough to alert the package shipment company. …

And last month, quoting Washington Legal Foundation’s Cory Andrews:

“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….

Now, this [Associated Press/ABC News]:

A criminal trial nearly two years in the making alleging FedEx knowingly delivered illegal prescription drugs to dealers and addicts ended suddenly Friday when prosecutors moved to dismiss all charges against the shipping giant.

U.S. District Court Judge Charles Breyer, who had been highly critical of the government’s positions as the trial unfolded, granted the motion to dismiss: on Friday he called FedEx “factually innocent” and said the withdrawal of charges was “in the court’s view, entirely consistent with the government’s overarching obligation to seek justice even at the expense of some embarrassment.”

FedEx spokesman Patrick Fitzgerald said in a statement Friday that the company has always been innocent and the case should never have been brought.

“The government should take a very hard look at how they made the tremendously poor decision to file these charges,” he said. “Many companies would not have had the courage or the resources to defend themselves against false charges.”

Many in the field of white-collar legal defense have warned large corporations, particularly those with businesses built upon relationships of public trust, to cut a deal with the federal government rather than try to withstand the full force it can bring to bear in a prosecution. But FedEx, for one, has shown that it is still possible to defy the authorities and win. Mike Koehler at FCPA Professor says that might help lay to rest what has been called the “Arthur Andersen effect” in which indictment is itself seen as tantamount to corporate death.

P.S.: Our friend James Copland of the Manhattan Institute has this observation (via email):

What’s remarkable here is that UPS agreed to a $40 million non-prosecution agreement — and to hire a new corporate officer and an independent auditor looking over their shoulder and reporting to the U.S. Attorney — for the same alleged conduct.

[cross-posted at Cato at Liberty]

More from Jim Copland and Rafael Mangual at Real Clear Markets: “Judge Breyer observed that the government had failed to show any ill intent, and he pointedly noted that prosecutors have not gone after the U.S. Postal Service for the same conduct…. glad FedEx called the government’s bluff and won.”