- “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.]
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.
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.
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.
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]
- 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]
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).
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.
[bumped from original Friday posting due to interest in the issue and many new links] I’ve got a new post on the Employment Non-Discrimination Act (ENDA) just up at Cato. More: Stephen Miller; similar takes on the issue, Stephen Richer, Purple Elephant and Daily Caller, Libertarian Jew, Coyote, David Bernstein.
More, all citing my post: Andrew Sullivan, who is now tepidly in favor of the bill; Peter Weber, The Week; Scott Shackford, Reason; Paul Mirengoff, PowerLine; Doug Mataconis, Outside the Beltway; Ray Hennessey, Entrepreneur and also at Reuters; Hans Bader, CEI; Jordan Weissman, The Atlantic, Jon Hyman/Ohio Employment Law, and USA Today editorial (contra).
P.S. More thoughts from Eli Lehrer at Huffington Post (“Gay marriage is increasingly accepted precisely because its results, to date, have been good for society. Polyamory on a large scale would have negative short-term results and that’s a good reason to think it’s just not going to happen.”).