Washington, D.C. listeners, tune in at 10 a.m. this morning (Tuesday) when I’ll be a guest again on Diane Rehm’s award-winning radio show, discussing developments in Ferguson, Mo., including a grand jury’s decision that officer Darren Wilson won’t face charges in the shooting of Michael Brown. Other guests include Julie Bosman, reporter, The New York Times; Sherrilyn Ifill, president and director-counsel, NAACP Legal Defense Fund; and Andrew Ferguson, associate professor of law, University of the District of Columbia School of Law. (bumped Tuesday morning to keep at top of page)
I was a guest on Ray Dunaway’s program on Hartford-based WTIC discussing (audio) the new Minneapolis plan for race-conscious school discipline, which is likely to be replicated around the country as more cities and states fall into line with the new Department of Justice policy. Earlier here, and a somewhat different view from Coyote, who writes: “By the way, in today’s legal environment, any private employer who says they don’t put extra scrutiny on terminations of folks in protected classes, or don’t increase the warnings and documentation required internally before firing someone in a protected class, is probably a liar.”
On Monday I moderated a panel at Cato on Damon Root’s splendid new book on the long debate over judicial activism from the Civil War to the present (blurbs). Commenting were prominent legal journalist Jeffrey Rosen, president of the National Constitution Center in Philadelphia, and Roger Pilon, director of Cato’s Center for Constitutional Studies, whose work figures prominently in the book. From the description:
What is the proper role of the Supreme Court under the Constitution? Should the Court be “active” or “restrained”? Or is that even the proper way to look at the question, however much we’ve heard it put that way for several decades now? In his new book, Damon Root traces this debate from the Constitution’s conception to the present. His central focus, however, is on the emergence of the modern libertarian approach, which cuts through the often sterile debate between liberals and conservatives and points to the Constitution itself by way of determining the proper role of the Court under it.
Three columns to read on the subject: Gene Healy, Glenn Reynolds (linking this site), and Nat Hentoff (like Healy, a Cato colleague) in his syndicated column (thanks for mention). I had a letter to the editor yesterday in the Frederick News-Post drawing connections with local lawmakers (as well as a blog post at Free State Notes with similar themes) and the Arizona Republic quoted me Tuesday on the federal subsidy programs that drive militarization, including transfers to the ever-controversial Maricopa County Sheriff’s Office of Joe Arpaio. Earlier here, here, here, here, here, etc.
P.S. Also quoted on NPR.
All-Ferguson edition, including my CNBC exchange last Friday, above:
- Typically good John Stossel column [Washington Examiner, syndicated, and thanks for mention] Disturbing innovations coming our way in the world of crowd/protest control include “puke cannons,” “pain rays” [Gene Healy, Washington Examiner, ditto]
- Cause of death: failure to comply with police orders [David M. Perry, opinion] “Here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you” [Sunil Dutta (L.A.P.D. officer), Washington Post; Ken at Popehat]
- “Expect Many, Many Lawsuits From Ferguson” [Chris Geidner, BuzzFeed]
- Not the safe conventional move: I’m quoted on Sen. Rand Paul’s willingness to grapple with Ferguson [Politico]
- Local commercial economies take a long time to recover from damage done by looting [Kate Rogers/Fox Business, thanks for quote]]
- Political economy: unusual state of representation in Ferguson makes the town an outlier [Seth Masket, Pacific Standard] Police-driven budget? “Ferguson receives nearly one-quarter of its revenue from court fees” [Jeff Smith, NY Times]
- According to Victor Davis Hanson, we critics of police militarization have “empowered [radical groups] to commit violence” [NRO]
- “What I Did After a Cop Killed My Son” [Michael Bell, Politico, Kenosha, Wisc.; civilian review]
- “Why Are There No News Helicopters Over Ferguson?” [Peter Suderman]
Above: Cato podcast, interviewed by Caleb Brown.
The events in Ferguson, Mo. have vaulted police militarization to the top of the national news. I’ve spent a lot of the past 48 hours talking with the press, covering the issue on Twitter and other social media, and fielding reactions to my blog post (reprinted at the Cato blog), which has gotten considerable attention. Highlights:
- Kentucky Sen. Rand Paul, a likely Republican candidate for president, wrote an extraordinary op-ed for Time that is destined to be widely talked about (how many Republican Senators — or Democrats for that matter — would have written, “Given the racial disparities in our criminal justice system, it is impossible for African-Americans not to feel like their government is particularly targeting them”?) Sen. Paul was kind enough to quote my post at length. Reactions: Dave Weigel/Slate, Olivia Nuzzi/Daily Beast; Augusta (Ga.) Chronicle editorial, and many others.
- CBS News’s formidable legal correspondent, Jan Crawford, interviewed me on the subject and the results have begun to air [CBS Evening News]
- I’m interviewed at length in print coverage by Mike Dorning at Bloomberg News and Business Week and by Brian Hughes at the Washington Examiner;
- After a particularly silly meme began to circulate on Twitter (and even in the Washington Post) about libertarians supposedly neglecting the Ferguson events, rebuttals were heard from Elizabeth Nolan Brown at Andrew Sullivan’s The Dish; Ilya Somin, Volokh Conspiracy; and Andrew Kirell, Mediaite.
- I’ve appeared on Ray Dunaway’s WTIC morning show in Hartford and Jack Riccardi’s midday show on KTSA in San Antonio. Friday: KSRO (Sonoma County, Calif.) with Melanie Morgan.
P.S. Finally some good news from Ferguson. Newly assigned cops from the Missouri Highway Patrol wear blue not camo, mingle and talk to protesters with respect — and suddenly there’s calm. And the Rand Paul piece is making news.
My first appearance at Cato’s Free Thoughts podcast series at Libertarianism.org, this is feature length — an hour, as opposed to a few minutes as is typical with Cato’s daily podcast. (Direct SoundCloud and YouTube links). The description:
Walter Olson joins Aaron and Trevor for a discussion on the evolution of discrimination law in the American legal system. They talk about common carrier obligations, preferential treatment and employee discrimination suits, the disparate impact of anti-discrimination laws —- especially in hiring decisions —- and the role of law schools and academia in perpetuating this cycle.
I wrote about many of these issues at length in The Excuse Factory, and expanded on the law-school angle in my more recent Schools for Misrule. You can follow our tags for more background on discrimination law generally, disabled rights and the ADA, age discrimination law, and many other topics.
P.S. From David Bernstein, Cato Unbound, 2010: “Context Matters: A Better Libertarian Approach to Antidiscrimination Law”
I was a guest Tuesday on the Roger Hedgecock program at the San Diego Union-Tribune, discussing the way Washington, D.C. seems to have come down at least as hard on Toyota as on General Motors, maybe harder, even though the safety shortcomings falsely attributed to Toyota appear actually to be present in the GM case.
One striking feature of the GM story is the extent to which a culture of putting as little as possible on paper appears to have undermined GM’s capability to grasp the scope of the safety problem with the flimsy ignitions and their relationship to nonfunctional airbags. Bill Vlasic of the New York Times reports:
To the legal department at General Motors, secrecy ruled. Employees were discouraged from taking notes in meetings. Workers’ emails were examined once a year for sensitive information that might be used against the company. G.M. lawyers even kept their knowledge of fatal accidents related to a defective ignition switch from their own boss, the company’s general counsel, Michael P. Millikin.
As I’ve often noted, organizations gripped by fear of legal consequences or hostile oversight often develop a “put as little as possible on paper” mentality, even though such a mentality regularly proves counterproductive to the organization’s mission by fostering ignorance and lack of coordination and allowing bad practice to take root.
A twelve-minute Cato podcast in which I talk to Caleb Brown about how government can roll minor fines over routine offenses into crushing financial burdens and years of entanglement in the criminal justice system. A particular problem: systems that assign fines and payments to the account of actors in the justice system and for-profit private contractors which can operate under a perverse incentive to trip up petty wrongdoers and keep them in the system. The National Public Radio special “Guilty and Charged,” based on a yearlong investigation, is here. Many of my examples are taken from it, including the persons drawn into the system after fishing out of season and making an illegal left turn, and the woman saddled with a $10,000 debt on emerging from prison. Radley Balko discusses. I’ve written earlier on the problems with private probation, on a Shelby County, Alabama judge’s 2012 finding that the town of Harpersville was engaged in a “judicially sanctioned extortion racket,” and more broadly on law enforcement for profit and its forfeiture branch.
Related: Tyler Cowen on a new book about persons living at the margins of the law, Alice Goffman’s On the Run: Fugitive Life in an American City.
Last fall the editors of the Vermont Law Review were kind enough to invite me to participate in a discussion on food and product labeling, part of a day-long conference “The Disclosure Debates” with panels on environmental, financial, and campaign disclosure. Other panelists included Christine DeLorme of the Federal Trade Commission, Division of Advertising Practices; Brian Dunkiel, Dunkiel Saunders; George Kimbrell, Center for Food Safety; and David Zuckerman, Vermont State Senator and Farmer, Full Moon Farm.
Aside from my own segment above, you can find links to the other segments here. Plus: Environmental Health (VLS) summary of above panel.
I’ll be one of the panelists on a webinar this Friday at 1 p.m. Eastern (fee-based, CLE credit available) presented by the ABA’s State and Local Government Law Section on Town of Greece v. Galloway, the Supreme Court’s recent case on invocational prayer at town councils and similar legislative bodies (earlier here and here). Other panelists include Eric Rassbach of the Becket Fund for Religious Liberty and Mark Burkland of Holland & Knight, while Patricia Salkin, Dean and Professor of Law at Touro Law Center, will serve as moderator. More at Inverse Condemnation.
Cato’s Caleb Brown interviews me about this week’s Supreme Court decision in the local-government invocation case of Town of Greece v. Galloway, discussed earlier here and here.
A few measured, non-alarmist reactions to the decision: Noah Feldman via Rick Pildes, ABC News (quoted views of Rick Garnett, Notre Dame, and Daniel Mach, ACLU), and Howard Wasserman/Prawfs. And Paul Horwitz speculates on whether Kennedy’s formula will work when invocational legislative prayer is employed in knowingly divisive ways. More: a different take on the issue from Christian syndicated columnist Cal Thomas.
Huge win for justice and good sense: facing a mounting public furor, “The Social Security Administration announced Monday that it will immediately cease efforts to collect on taxpayers’ debts to the government that are more than 10 years old.” [WaPo] Credit goes above all to the Washington Post and its reporter Marc Fisher for exposing the most outrageous features of the IRS’s refund-interception program last week, as recounted in this space; I like to think I helped as well by beating the drum early and repeatedly since then with Cato’s help. Overlawyered’s Facebook post on the subject has been seen by more than 60,000 people and shared more than 700 times in the past few days. (Have you liked us yet?)
The next step should be to establish for the public record how the provision in question got slipped into the farm bill, and at whose behest. Congress’s refusal to be forthcoming on this topic speaks volumes about its lack of a felt sense of responsibility toward the people it represents.
And a theme I’ve been repeating for almost as long as I’ve been writing about law: statutes of limitations developed in civilized legal systems for a reason. They protect us not only from cost, uncertainty, and the misery of legal process, but from injustice of a hundred other kinds, and they protect society itself from spiraling into a legal war of all against all. Stop trying to abolish them!
More: Ed Morrissey, Megan McArdle. And here’s a Cato podcast just out on the subject in which Caleb Brown interviews me on the topic:
Popular radio host Mike Rosen had me on his program last week to talk about the Justice Department’s aggressive use of criminal law against the Japanese automaker (earlier here). Also check out Canadian columnist Terence Corcoran’s view: “Intended media acceleration and the assault on Toyota” [Financial Post]
Lenore Skenazy’s incredibly funny talk last Thursday, with me commenting and moderating (and even at one point giving my impression of a 3-year-old losing a cookie), is now online. Several people have told me this was one of the most entertaining and illuminating Cato talks they’ve seen.
Lenore’s blog is Free-Range Kids and you can buy her book of the same name here. Some links on topics that came up in my remarks: Harvard researchers call for yanking obese kids out of their homes; authorities in Queensland, Australia, plan use of satellite data to spy out noncompliance with pool safety rules; courts reward helicopter parents in custody battles; charges dropped against mom who left toddler sleeping in car while she dropped coins in Salvation Army bucket; proposals to cut kids’ food into small bits and discontinue things like peanuts and marshmallows entirely; authorities snatch kids from homes after parents busted with small quantities of pot.
P.S. Direct video link here (h/t comments).
Caleb Brown interviews me for this new Cato podcast on a knotty question: when should a state attorney general decline to argue in court in defense of a law he thinks unconstitutional? On the one hand, the legal profession’s norms strongly favor giving every client and cause its day in court, and practical dysfunction might result were cases routinely handed over to others to defend or dropped entirely. On the other hand, attorneys general like other officials take an oath of office to the constitution, which calls in doubt whether they should (or even may) use their skills on behalf of unconstitutional measures. Complicating matters: how should unconstitutionality be assessed, by way of the AG’s own judgment, by way of predicting how the highest relevant court would rule, or by some other method? What kind of difference should it make whether the assessment appears certain, very probable, or more ambiguous than that?
In recent weeks about a half-dozen Democratic AGs around the country have declined to defend their states’ bans on same-sex marriage, on the grounds that they are inconsistent with the Supreme Court’s Windsor decision of last year, while other AGs both Republican and Democratic have argued in defense of those laws. (Today, Kentucky’s attorney general announced that he will not appeal a federal court ruling requiring the state to recognize out-of-state marriages, although the state’s governor is stepping in to do so.) Finding either liberals or conservatives who have preserved entirely consistent positions on the issue, though, is not always easy. Former attorney general Ken Cuccinelli, a strong conservative, declined to defend a state education reform law last year, while in 2011 Wisconsin Gov. Scott Walker and Attorney General J.B. Van Hollen declined to defend a state domestic partnership registry they deemed unconstitutional. In a case like the latter it was liberals who tended to criticize the refusal to defend a law, and conservatives who applauded — patterns that to some extent have been reversed this time around.