Overlawyered » same-sex marriage http://overlawyered.com Chronicling the high cost of our legal system Tue, 21 Oct 2014 09:35:46 +0000 en-US hourly 1 http://wordpress.org/?v=4.0 Supreme Court roundup http://overlawyered.com/2014/10/supreme-court-roundup-4/ http://overlawyered.com/2014/10/supreme-court-roundup-4/#comments Tue, 14 Oct 2014 04:05:29 +0000 http://overlawyered.com/?p=48763 Sorry, National Review, but the marriage rulings are really nothing at all like Dred Scott [my new piece at The Daily Beast] Or Roe v. Wade either [Dale Carpenter, Ilya Shapiro, Charles Lane] Ninth Circuit won’t get the message about not expropriating raisin farmers and it’s time for the Court to remind it again [also […]

Supreme Court roundup is a post from Overlawyered - Chronicling the high cost of our legal system

]]>
  • Sorry, National Review, but the marriage rulings are really nothing at all like Dred Scott [my new piece at The Daily Beast] Or Roe v. Wade either [Dale Carpenter, Ilya Shapiro, Charles Lane]
  • Ninth Circuit won’t get the message about not expropriating raisin farmers and it’s time for the Court to remind it again [also Ilya Shapiro, earlier]
  • Private businesses, even those that are quasi-public like Amtrak, shouldn’t be delegated the right to regulate their competitors [Ilya Shapiro yet a third time]
  • “Supreme Court takes case on duration of traffic stops” [Orin Kerr, Rodriguez v. United States]
  • Housing disparate impact theory, dodged by administration last time around, returns to Court [Bloomberg, Daniel Fisher; Texas Department of Housing and Community Affairs v. The Inclusive Communities Project; earlier]
  • Noteworthy feature of just-argued wage-and-hour case is that Obama Department of Labor is taking the employer side [Denniston, SCOTUSBlog; Integrity Staffing Solutions v. Busk]
  • “Supreme Court to hear case on right of Maryland to tax out-of-state income” [Ashley Westerman, Capital News Service]
  • Mark your calendar if in D.C.: I’ll be moderating a Nov. 3 talk at Cato by Damon Root about his new book Overruled: The Long War for Control of the U.S. Supreme Court, with commentary from Roger Pilon and Jeffrey Rosen [Reason]
  • Tags: , , , ,

    Supreme Court roundup is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/10/supreme-court-roundup-4/feed/ 1
    Critics hit U.Va. Prof. Douglas Laycock with FOIA http://overlawyered.com/2014/05/student-activists-hit-prof-douglas-laycock-foia/ http://overlawyered.com/2014/05/student-activists-hit-prof-douglas-laycock-foia/#comments Mon, 26 May 2014 16:05:13 +0000 http://overlawyered.com/?p=46102 Prof. Douglas Laycock of the University of Virginia is among the nation’s leading law-and-religion scholars. Many of his positions on church-state matters would normally be taken for quite liberal; for example, he argued the recent Supreme Court case of Town of Greece v. Galloway on behalf of those objecting to sectarian prayer of any sort […]

    Critics hit U.Va. Prof. Douglas Laycock with FOIA is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    Prof. Douglas Laycock of the University of Virginia is among the nation’s leading law-and-religion scholars. Many of his positions on church-state matters would normally be taken for quite liberal; for example, he argued the recent Supreme Court case of Town of Greece v. Galloway on behalf of those objecting to sectarian prayer of any sort before town council meetings. At the same time, as noted on an earlier occasion, Prof. Laycock happens to favor a broad application of religious-accommodation laws such as the federal Religious Freedom Restoration Act of 1993. This has led him to support proposals for state RFRAs with broad definitions, like the one recently vetoed in Arizona, and also to file an amicus brief on behalf of employer Hobby Lobby in Sebelius v. Hobby Lobby.

    Now comes the price to pay [Charlottesville Daily Progress]:

    Laycock, who is married to UVa President Teresa A. Sullivan, is the subject of a Freedom of Information Act records request by two UVa student activists — Gregory Lewis and Stephanie Montenegro. In an open letter to the professor, Lewis and Montenegro said that while they respect Laycock’s right to academic freedom, they believe his writings supporting controversial religious freedom laws are holding back progressive causes such as access to contraceptives and gay marriage.

    An outside group has been promoting the action [C-ville.com]:

    “His work, whether he understands it or realizes it or not, is being used by folks who want to institute discrimination into law,” said Heather Cronk, co-director of Berkeley, California-based LGBT activist group GetEQUAL. …

    Through the activist group Virginia Student Power Network, GetEQUAL found two UVA students willing to take up the cause of calling out Laycock: rising fourth-year Greg Lewis and now-alum Stephanie Montenegro. Last week, the pair sent an open letter to Laycock asking him to consider the “real-world consequences that [his] work is having.” They also submitted a Freedom of Information Act request seeking e-mails between Laycock and various right-wing and religious liberty groups. … Meanwhile, GetEQUAL has launched a national e-mail campaign calling out Laycock for his role in shoring up the legal arguments of those who support “religious bigotry.”

    If the issue of FOIA-ing U.Va. professors rings a bell, it’s because it’s happened at least twice before. Around 2009 Greenpeace, the environmental activist group, FOIAed the university demanding correspondence and documents relating to former professor Patrick Michaels (now at Cato), who had espoused skeptical views on global warming. Then allies of former Virginia attorney general Ken Cuccinelli filed a FOIA request seeking similar documents for Michael Mann, a prominent advocate of global warming theories. [C-ville.com, WaPo]

    No one could doubt that Laycock’s views on religious accommodation are part of a set of intellectually derived convictions that run through decades of his work. (In addition to opposing such forms of church-state entanglement as officially sponsored prayer, he supports the right of gays to marry.) It’s simply a matter of trying to arm-twist a tenured, well-recognized scholar who takes a position that the Forces of Unanimity consider wrong.

    Of course, the student activists deny that anything like that is on their minds:

    Lewis said they’re not trying to smear Laycock, and they’re not trying to undermine academic freedom. They just want a dialogue, he said.

    Prof. Bainbridge isn’t buying it:

    [B.S.] You don’t start a dialogue with FOIA requests. ….It’s time to start fighting back.

    It might also be time for legislators to clarify state open-records laws to determine under what circumstances they can be used to go after academics, and consider altering them, where appropriate, to provide for financial or other sanctions when they are misused.

    Note also: conservative-leaning groups have launched a series of FOIA requests seeking records of professors at state universities in North Carolina, Virginia, Wisconsin, Michigan, and Texas. The left-leaning Institute for Southern Studies has a critical account here. (& welcome readers from Steve Miller, IGF; Paul Caron, TaxProf; Jonathan Adler, Volokh; Ramesh Ponnuru/NRO “Corner”; Prof. Bainbridge; Will Creeley/FIRE; Dahlia Lithwick, Slate; Megan McArdle, Bloomberg View)

    Tags: , , ,

    Critics hit U.Va. Prof. Douglas Laycock with FOIA is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/05/student-activists-hit-prof-douglas-laycock-foia/feed/ 21
    April 30 roundup http://overlawyered.com/2014/04/april-30-roundup-3/ http://overlawyered.com/2014/04/april-30-roundup-3/#comments Wed, 30 Apr 2014 04:05:41 +0000 http://overlawyered.com/?p=44439 “7 Reasons U.S. Infrastructure Projects Cost Way More Than They Should” [Scott Beyer, Atlantic Cities] Gov. Jerry Brown’s appointments could reshape California Supreme Court [Mark Pulliam, City Journal] Critics say hiring of outside counsel in Pennsylvania government is an insider’s game [WHTM] Could “Bitcoin for contracts” replace legal drafters’ expertise? [Wired with futurist Karl Schroeder] […]

    April 30 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
  • “7 Reasons U.S. Infrastructure Projects Cost Way More Than They Should” [Scott Beyer, Atlantic Cities]
  • Gov. Jerry Brown’s appointments could reshape California Supreme Court [Mark Pulliam, City Journal]
  • Critics say hiring of outside counsel in Pennsylvania government is an insider’s game [WHTM]
  • Could “Bitcoin for contracts” replace legal drafters’ expertise? [Wired with futurist Karl Schroeder]
  • “Getting state out of marriage” makes for neat slogan but results would be messy in practice [Eugene Volokh]
  • Lobbying by auto body shops keeps Rhode Island car repair costs high [Providence Journal, PCIAA press release and report in PDF]
  • “Bipartisan, publicity-hungry members of Congress want the FTC to investigate Photoshopping in ads” [Virginia Postrel on this WaPo report; Daily Beast; earlier here, here, etc.]
  • Tags: , , , , , ,

    April 30 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/04/april-30-roundup-3/feed/ 0
    One lesson of the Eich/Mozilla affair http://overlawyered.com/2014/04/one-lesson-eichmozilla-affair/ http://overlawyered.com/2014/04/one-lesson-eichmozilla-affair/#comments Mon, 07 Apr 2014 14:48:49 +0000 http://overlawyered.com/?p=45069 Laws requiring campaign donation disclosure can reinforce conformist pressures, notes my colleague Ilya Shapiro on the episode of the tech CEO who stepped down after an outcry over his donation to California’s Prop 8 campaign a few years ago. [Forbes] On the wider significance of the episode (not mostly one of law or regulation, since […]

    One lesson of the Eich/Mozilla affair is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    Laws requiring campaign donation disclosure can reinforce conformist pressures, notes my colleague Ilya Shapiro on the episode of the tech CEO who stepped down after an outcry over his donation to California’s Prop 8 campaign a few years ago. [Forbes] On the wider significance of the episode (not mostly one of law or regulation, since the government did not and in my view should not get involved either way), I recommend Conor Friedersdorf’s careful analysis in the Atlantic.

    Tags: , ,

    One lesson of the Eich/Mozilla affair is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/04/one-lesson-eichmozilla-affair/feed/ 19
    “Choosing What to Photograph Is a Form of Speech” http://overlawyered.com/2014/03/choosing-photograph-form-speech/ http://overlawyered.com/2014/03/choosing-photograph-form-speech/#comments Tue, 18 Mar 2014 04:15:16 +0000 http://overlawyered.com/?p=44632 New WSJ op-ed by Eugene Volokh and my colleague Ilya Shapiro, with which I agree 100%: “We support the extension of marriage to same-sex couples. Yet too many who agree with us on that issue think little of subverting the liberties of those who oppose gay marriage. Increasingly, legislative and judicial actions sacrifice individual rights […]

    “Choosing What to Photograph Is a Form of Speech” is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    New WSJ op-ed by Eugene Volokh and my colleague Ilya Shapiro, with which I agree 100%: “We support the extension of marriage to same-sex couples. Yet too many who agree with us on that issue think little of subverting the liberties of those who oppose gay marriage. Increasingly, legislative and judicial actions sacrifice individual rights at the altar of antidiscrimination law.” Existing precedent affords a handy if narrow way to reverse New Mexico’s wrong-headed Elane Photography decision: “The Supreme Court’s ruling in Wooley guarantees the right of photographers, writers, actors, painters, actors, and singers to decide which commissions, roles or gigs they take, and which they reject.”

    Related on bake-my-cake laws: in the absence of more robust rights to freedom of association, could we at least narrow what’s a public accommodation? [Scott Shackford, Reason; David Link, Independent Gay Forum (on precedent of landlord reluctance to rent to cohabitors] Earlier on photography and cake cases here, here, here, here, here, here, here, here, etc.

    P.S. Cato podcast with Caleb Brown interviewing Ilya Shapiro on the topic.

    Tags: , , , ,

    “Choosing What to Photograph Is a Form of Speech” is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/03/choosing-photograph-form-speech/feed/ 33
    When AGs decline to defend state laws http://overlawyered.com/2014/03/ags-decline-defend-state-laws/ http://overlawyered.com/2014/03/ags-decline-defend-state-laws/#comments Tue, 04 Mar 2014 18:44:44 +0000 http://overlawyered.com/?p=44344 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 […]

    When AGs decline to defend state laws is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>

    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.

    Tags: , , , , ,

    When AGs decline to defend state laws is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/03/ags-decline-defend-state-laws/feed/ 5
    Maryland roundup http://overlawyered.com/2014/01/maryland-roundup-9/ http://overlawyered.com/2014/01/maryland-roundup-9/#comments Sat, 18 Jan 2014 13:00:15 +0000 http://overlawyered.com/?p=43219 Legislature’s back in session and no citizen’s liberties are safe: SB 65 (Benson) would require gas station dealers to maintain operational video cameras and retain footage for 45 days [Maryland Legislative Watch] HB 20 (GOP Del. Cluster) would require all public schools to hire cops [Gazette, MLW] SB 28 (Frosh) would lower burden of proof […]

    Maryland roundup is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    Legislature’s back in session and no citizen’s liberties are safe:

    • SB 65 (Benson) would require gas station dealers to maintain operational video cameras and retain footage for 45 days [Maryland Legislative Watch]
    • HB 20 (GOP Del. Cluster) would require all public schools to hire cops [Gazette, MLW]
    • SB 28 (Frosh) would lower burden of proof for final domestic protective orders from “clear and convincing” to “preponderance of the evidence” [MLW, ABA] One problem with that is that orders already tag family members as presumed abusers in the absence of real evidence, are routinely used as a “tactical leverage device” in divorces, and trip up unwary targets with serious criminal penalties for trying to do things like see their kids;
    • Driving while suspected of gun ownership: what unarmed Florida motorist went through at hands of Maryland law enforcement [Tampa Bay Online] 2014 session in Annapolis can hardly be worse for gun rights than 2013, so it stands to reason it’ll be better [Hendershot's]
    • State begins very aggressive experiment in hospital cost controls: “I am glad there is an experiment, but I’m also glad I live in Virginia.” [Tyler Cowen]
    • Scenes from inside the failed Maryland Obamacare exchange [Baltimore Sun] Lt. Gov.: now’s not the time to audit or investigate the failed launch because that’d just distract us from it [WBAL]
    • Corridors run pink as Montgomery County school cafeterias battle scourge of strawberry milk [Brian Griffiths, Baltimore Sun]
    • Plus: A left-right alliance on surveillance and privacy in the legislature [my new Cato at Liberty post]
    • How did Maryland same-sex marriage advocates win last year against seemingly long odds? [Stephen Richer, Purple Elephant Republicans citing Carrie Evans, Cardozo JLG; thanks to @ToddEberly as well as Carrie and Stephen for kind words]
    Tags: , , , , , , , ,

    Maryland roundup is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2014/01/maryland-roundup-9/feed/ 1
    December 3 roundup http://overlawyered.com/2013/12/december-3-roundup-2/ http://overlawyered.com/2013/12/december-3-roundup-2/#comments Tue, 03 Dec 2013 04:05:01 +0000 http://overlawyered.com/?p=42551 The law blog that almost brought down ObamaCare [Trevor Burrus, Cato] “In Government, Nothing Succeeds Like Failure,” public policies being hard to adjust when they go astray [Peter Schuck, HuffPo] Sexual harassment claim: “Attorneys awarded more than 600 times damages in Calif. case” [Legal NewsLine] KlearGear, of non-disparagement fame, reaps the online whirlwind [Popehat, Public […]

    December 3 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
  • The law blog that almost brought down ObamaCare [Trevor Burrus, Cato] “In Government, Nothing Succeeds Like Failure,” public policies being hard to adjust when they go astray [Peter Schuck, HuffPo]
  • Sexual harassment claim: “Attorneys awarded more than 600 times damages in Calif. case” [Legal NewsLine]
  • KlearGear, of non-disparagement fame, reaps the online whirlwind [Popehat, Public Citizen, Volokh, earlier]
  • “What if American Exceptionalism, properly understood, really boils down to associational liberty?” [Richard Reinsch, Liberty Law] Do religious-liberty carve-outs in same-sex marriage laws go too far, not far enough, or neither? [Dale Carpenter et al. vs. Richard Garnett et al.]
  • What jury didn’t hear in qui tam award against pipemaker JM Eagle [Daniel Fisher, more]
  • Majority of appointed commissioners on Consumer Product Safety Commission is is no hurry to reduce inordinate CPSIA testing burdens, per retiring commissioner Nancy Nord (more);
  • Woman who claims to own sun says she prevailed in lawsuit brought by man who claims to own universe [Lowering the Bar]
  • Tags: , , , , ,

    December 3 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2013/12/december-3-roundup-2/feed/ 1
    ACLU on wrong side of wedding photographer case http://overlawyered.com/2013/11/aclu-wrong-side-wedding-photographer-case/ http://overlawyered.com/2013/11/aclu-wrong-side-wedding-photographer-case/#comments Fri, 22 Nov 2013 16:30:19 +0000 http://overlawyered.com/?p=42641 I’ve got a new post at Cato asking how that could have come to be. Earlier on Elane Photography v. Willock here, here, etc. Reacting to my Cato post, a couple of readers have responded, in effect: Isn’t the ACLU just a doctrinaire Left-liberal organization these days, rather than a bulwark of civil liberties? To […]

    ACLU on wrong side of wedding photographer case is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    I’ve got a new post at Cato asking how that could have come to be. Earlier on Elane Photography v. Willock here, here, etc.

    Reacting to my Cato post, a couple of readers have responded, in effect: Isn’t the ACLU just a doctrinaire Left-liberal organization these days, rather than a bulwark of civil liberties? To which my answer is: I’d describe it as an organization with lively internal divisions, some factions of which push it in a doctrinaire Left direction, others of which want it to be more of a robust civil liberties organization. (As witness last year’s “Mayors vs. Chick-Fil-A” controversy, in which the ACLU of Illinois took a strong and clear civil libertarian stand while the ACLU of Massachusetts seemed to lean more toward a doctrinaire-Left position.) Some speak ironically of the “civil liberties caucus” that soldiers on thanklessly within the ACLU. I want to encourage that caucus and let it know it is appreciated. (& Stephen Richer/Purple Elephant, Coyote).

    Tags: , , , ,

    ACLU on wrong side of wedding photographer case is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2013/11/aclu-wrong-side-wedding-photographer-case/feed/ 10
    Interviewed on ENDA http://overlawyered.com/2013/11/interviewed-enda/ http://overlawyered.com/2013/11/interviewed-enda/#comments Tue, 05 Nov 2013 21:07:44 +0000 http://overlawyered.com/?p=42331 Caleb Brown interviews me for Cato on the politics and policy of employment discrimination laws. I’ve also done interviews with Voice of America (updated: article with video here, at 1:45; higher-def video here), St. Louis’s KMOX, Mark Reardon show and Bay Area public radio station KQED with Michael Krasny (includes audio link), where I had […]

    Interviewed on ENDA is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>

    Caleb Brown interviews me for Cato on the politics and policy of employment discrimination laws. I’ve also done interviews with Voice of America (updated: article with video here, at 1:45; higher-def video here), St. Louis’s KMOX, Mark Reardon show and Bay Area public radio station KQED with Michael Krasny (includes audio link), where I had a chance to promote my much-missed friend Joan Kennedy Taylor’s excellent Cato book on workplace harassment. My Cato post on the subject of Friday is here and reactions here. More press coverage: Naureen Khan, Al Jazeera America (symbolism a poor reason for or against bill); Nick O’Malley, Sydney Morning Herald (my views contrasted with Andrew Sullivan’s), Robin Shea, Employment and Labor Insider, Deseret News (opinion roundup including USA Today’s), Tim Carney/Washington Examiner.

    Tags: , , ,

    Interviewed on ENDA is a post from Overlawyered - Chronicling the high cost of our legal system

    ]]>
    http://overlawyered.com/2013/11/interviewed-enda/feed/ 1