Supreme Court liberals smack around the Obama Equal Employment Opportunity Commission (EEOC), even as they hand a win to a pregnancy-bias plaintiff. I’ve got a write-up at Cato at Liberty. More: Josh Blackman.
Gov. Gary Herbert (R) has signed into law an expansion of Utah’s anti-discrimination law following what’s being billed as a historic compromise between gay rights advocates and the Church of Jesus Christ of Latter-Day Saints. Unfortunately, as I argue at the Daily Beast, both halves of the compromise are bad news for individual liberty and freedom of association in the workplace. Excerpt:
As I noted at the Cato Institute’s website a while back, these laws “sacrifice the freedom of private actors—as libertarians recognize, every expansion of laws against private discrimination shrinks the freedom of association of the governed.”
That’s the familiar half of the story. What’s new about the Utah Compromise is that it adds completely new restrictions on employers’ rights to keep the workplace focused on work as opposed to religious or moral debate. In particular, it allows employees to sue on a claim that they were fired or otherwise treated poorly for talking about religion or morality in the workplace, at least if they were doing so in a way that was “reasonable” and didn’t interfere with the employer’s “essential” business interests.
When an employee then begins treating customers or co-workers to unasked-for disquisitions about religious or moral matters, it will apparently be the state of Utah—rather than, as now, the folks in human resources—who will have the final say as to whether the topic is “similar” to others on which discussion had previously been allowed, and whether the proselytizing or reproachful comments taken as a whole were “reasonable” or by contrast “harassing or disruptive.”
And I conclude:
It’s not clear whether anyone was at the table speaking up for employers’ rights and interests during the Utah negotiations. It’s a lot easier to reach what’s hailed as a historic compromise if you can do so at the expense of absent third parties, isn’t it?
I’ve got a new piece at Reason on how the U.S. Department of Labor stepped over the line when — relying on an obscure “hot goods” provision of the 1938 Fair Labor Standards Act — it slapped an order on two Oregon blueberry growers forbidding them from selling their crop until they settled a (dubious) DoL demand for back pay for workers. Having no choice in this forfeiture-like situation, the growers went along, but when things were brought to a federal court’s attention, the Obama administration got slapped down hard. Further observations at Cato at Liberty.
We mentioned the case in October, and developments last year drew coverage critical of the Administration’s tactics from a Wall Street Journal editorial, Jared Meyer at Economics 21, and George Leef at Forbes. For contrary views, see Catherine Ruckelshaus of the National Employment Law Project in Salon, with typical let-us-reason-together Salon framing (“lies… disingenuous… lost its mind”); Fair Warning; and Sachin Pandya, Workplace Prof. More coverage of the recent settlement and dropping of charges: AP, Oregonian, Fair Warning, and Trey Kovacs/WorkplaceChoice.org. More: Daniel Schwartz noting October 2014 DoL fact sheet.
I wrote the cover story in this weekend’s Washington Examiner magazine, about why the Northeast continues to elect Republicans as governor (and not to many posts other than that). The cast of characters includes newly elected governors Larry Hogan of Maryland and Charlie Baker of Massachusetts, Thomas Dewey, Chris Christie, Rudy Giuliani, William Weld, George Pataki, Mitt Romney, and Christine Todd Whitman.
It’s a particular honor that political analyst Michael Barone wrote a piece riffing on my article and going into more detail about the reformist origins of the GOP tradition in states like New York, and its continued importance as a brake on both self-dealing and fiscal profusion:
Why have Northeastern electorates, so heavily Democratic in presidential and congressional elections, been willing to elect Republican governors so often? Because that’s the only way to prevent their heavily Democratic legislatures from taxing and spending their states onto the road to bankruptcy for the benefit of the public employee unions. That’s something that Thomas Dewey, a light spender unlike Rockefeller, would approve and understand.
Most of my essay is about politics and policy, but here’s a bit related to law:
Northwestern law professor and Federalist Society member John McGinnis says [New York Gov. George] Pataki’s “most impressive act” was one that was hardly noticed at the time and yielded no electoral benefits, namely his appointment to the state’s highest court of Robert Smith, who “became one of the great state court jurists of his time.”
I’ve got a new post at Cato about the perennial problem of poor governance at Washington, D.C.’s WMATA Metro subway system, which on Monday suffered a smoke-in-tunnel accident that cost the life of a passenger and sickened many more. Excerpt:
If the cream of the nation’s political class, living within a 50 mile radius in Virginia, Maryland, and D.C., cannot arrange to obtain competence from their elected local officials in delivering a public service that’s vital to their daily work lives, what does that tell us about their pretensions to improve through federal action the delivery of local government services – fire and police, water supply and schooling, road maintenance and, yes, transit itself – in the rest of the country?
Reactions from George Leef (“it tells us that we should ignore them”), @jasonkeisling (“If it had been Uber, the gov would ban their service. But no need to address any problems with metro.”), and Christine Sisto/National Review. The Washington Post succinctly summarizes local outrage about the service’s failure to live up to its boasts of a “culture of safety”, while Washington City Paper, Aaron Wiener reviews Metro’s sluggish response to a series of previous safety crises and breakdowns.
A lot of literature — like this recent study cited by the Regional Plan Association — tends to confirm the idea that transit operations work better when governance is arranged so as to provide clear lines of responsibility and accountability. WMATA, which has gone through many general managers over the years, suffers from a weak, too-many-cooks board structure in which two each of eight board seats are filled by Maryland, Virginia, the District, and the federal government, along with another two alternates for each of the four jurisdictions.
On Wednesday morning at 9:15 a.m. I’m scheduled to be on Fox 5 WTTG Morning News television to talk about these ideas.
More: Michael Brickman, Flypaper. @politicalmath recalls when Metro got $200 million from the stimulus program to “create a safety culture.” Another comment from @jasonkeisling: “No accountability. Imagine if a private company had an incident like this…”
At Reason, Baylen Linnekin has a year-end survey asking “a handful of food law and policy cognoscenti” (thanks!) what they would pick as the story of the year in that area, and also the story to watch next year. (Others surveyed include Elizabeth Nolan Brown, Ron Bailey, and Jeff Stier.) As a significant story in the past year, I nominated the flare-up of social media resistance to changes to the federal school lunch program (“#ThanksMichelleObama“), noting that while purveyors of “food policy” could barely contain their disdain at the insolence of the students spreading the tag, the protest did make an impression in Washington: “of all the ways to irritate the political class, making fun of them is among their least favorite.”
So far as a sleeper issue to look for in 2015, my nomination was:
Have you heard of “Health in All Policies”? It’s a buzz-phrase for inserting public health dogma into everything from land use to taxation. Imagine if sticking up for your taste in milkshakes and margaritas meant you had to attend zoning meetings. It might come to that.
At “The Pulse”, a series on health based at Philadelphia’s public radio station WHYY, reporter Taunya English describes “Health in All Policies” at more length and quotes me providing a voice of skepticism about the idea.
If you defend freedom of speech today, realize that “blasphemy” is its front line, in Paris and the world. …
Most of the prestige Western press dodged the running of the [Danish Mohammed] cartoons, and beneath the talk of sensitivity was often simple fear. As journalist Josh Barro noted today on Twitter, “Islamists have by and large succeeded in intimidating western media out of publishing images of Muhammad.” …
[On the modern European rise of laws against “defamation of religion” and related offenses]: One way we can honor Charb, Cabu, Wolinski, Tignous, and the others who were killed Wednesday is by lifting legal constraints on what their successors tomorrow can draw and write.
Also recommended, this thoughtful Ross Douthat column on blasphemy and religious offense. Douthat is not enthusiastic about blasphemy generally, but makes an exception for instances where it is done in defiance of grave dangers. “If a large enough group of someones is willing to kill you for saying something, then it’s something that almost certainly needs to be said … it’s precisely the violence that justifies the inflammatory content. … if publishing something might get you slaughtered and you publish it anyway, by definition you *are* striking a blow for freedom, and that’s precisely the context when you need your fellow citizens to set aside their squeamishness and rise to your defense.”
“So many of Charb’s fellow journalists have long been aware of these threats, and have said nothing,” writes Mark Hemingway in the Weekly Standard. Jytte Klausen, author of a book on the Danish cartoon episode, in Time: “Over the past five years, [the editors of Charlie-Hebdo] have been left alone standing in defense of press freedom.” And Alex Massie at The Spectator:
[The 1989 fatwa against Salman Rushdie] was a test too many people failed back then. We have learned a lot since then but in many ways we have also learned nothing at all.
In 2012, Rushdie wondered if any publisher would have the courage to endorse The Satanic Verses if it were written then. To ask the question was to sense the depressing answer. They would not.
As for the present day, CNN, NYT, AP, NBC, ABC, the BBC, Guardian, Telegraph, and the CBC, will *not* be running Charlie-Hebdo cartoons, though a number of American publications did so, including Daily Beast, Vox, and Bloomberg. No UK paper on Thursday morning runs the cartoons on its cover — though the Berliner-Zeitung in Germany publishes a full spread of them.
23 cartoonists respond [BuzzFeed]. Claire Berlinski’s firsthand account of the attack scene, and Charb’s now-famous “die standing” vow. Andrew Stuttaford at Secular Right on whether anything will now change in Europe’s slow constriction of free speech: he fears not (& Hans Bader, CEI).
Part of a letter to the editor from Bert G. Osterberg of Costa Mesa, Calif. in the December 19 Wall Street Journal:
As a former Detroit resident and former city employee, I can attest to the odious role of overregulation in my hometown’s decline. When Detroit began to racially change, Mayor Coleman A. Young addressed the complaints of home buyers that they were being cheated with undisclosed defects of their home purchases by championing the passage of City Certification before any sale. This regulation not only required disclosure of defects but that all properties be brought up to current city code before the sale could be made. This, of course, led to mass abandonment of older homes as the cost of compliance was often more than the value of the house….
I’m in the early stages of a contemplated writing project on why my home city of Detroit failed, that is, why it has performed so much more poorly in recent decades than many other American cities that have faced serious economic challenge and social conflict. Feel free to send specific explanations, vignettes and suggested readings (not general rants about the city, please) to me at editor – at – overlawyered – dot – com or leave as comments if they are of general reader interest.
A story from Frederick County, Maryland, where I live. I wrote it up briefly at my blog Free State Notes, and it’s making the rounds all over the web, with Eugene Volokh and Steve Hayward among the first to comment. The Frederick News-Post, whose reporter Bethany Rodgers was the target of Councilman Delauter’s threat, has a write-up as well as an editorial (read the first letter of each paragraph). More: Van Smith, Baltimore City Paper (& Ed Krayewski, Reason “Hit and Run”; Andy Knight, Community Newspaper Holdings publications).
Update: Delauter has apologized here.
The New York governor was a lawyer by training — Gideon Kanner recalls his start as an eminent domain compensation lawyer in Queens — and drew insight from the experience. Bill Hammond of the Daily News:
— Bill Hammond (@NYDNHammond) January 3, 2015
During his term in office I wrote two pieces for the Wall Street Journal about Cuomo, one an opinion piece on New York’s finances, another a review of an unsuitably hagiographic biography; neither is online so far as I know. My view was that despite his lion-of-the-Left reputation, Cuomo had governed in a cautious rather than radical way, and by the same token had in no way been a transformational figure for his state: New York had largely the same set of governance problems when he left office as when he entered.