- On minimum wage, 1987-vintage Times beats undrinkable current Times (via @davidharsanyi) How we wish the law of demand would somehow suspend operation [The Economist, Todd Eberly]
- L.A.: four restaurant workers awarded $5.7M in age bias lawsuit [LADN]
- Highly menacing NLRB “persuader” regulations not dead [Labor Union Report] In D.L. Horton case, Fifth Circuit rejects NLRB position that pre-dispute arbitration waiving class/collective rights violates labor law [Jon Hyman, Gerald Maatman/Lily Strumwasser, WLF]
- “How Much Does It Cost To Make A Wage And Hour Case Go Away?” [Laura Reasons, Seyfarth] Banning unpaid internships a bad idea [Yglesias] Interns who sued employers can’t find jobs [CNN Money, auto-plays]
- NYU decides to let grad students unionize through non-NLRB channel [al-Jazeera]
- New headache for managers: class actions filed against employers (yes, employers) under Fair Credit Reporting Act (FCRA) [Jottings by an Employer’s Lawyer]
- de Blasio owes SEIU big and now the bills will come due [Newsday]
Archive for January, 2014
The ACLU “evolves” on speech rights
In McCullen v. Coakley, the Supreme Court will reconsider its 2000 decision in Hill v. Colorado, which upheld a law prohibiting (among other things) leafleting and some other forms of peaceful protest within 100 feet of an abortion facility. (Massachusetts in 2007 passed a similar law which is now under challenge.) Noted civil libertarian Floyd Abrams, writing in the WSJ, sees the case as a straightforward one of supporting free speech for a position with which he happens to disagree. But the ACLU, Abrams notes, has changed its position between the earlier case and this one, and in a speech-unfriendly direction:
In a friend-of-the-court brief in Hill, the ACLU argued that because the Colorado statute “burdens substantially more speech than is necessary to accomplish the state’s goal,” the statute was facially unconstitutional. When the 2007 statute was proposed in Massachusetts, the Massachusetts ACLU opposed it, stating that “[i]f the message is unwelcome, as it often will be outside abortion clinics, the constitutionally appropriate response in a public forum is for the listener to walk away.”
But now that McCullen has reached the Supreme Court, both ACLU groups have switched sides. Their position, their brief states, has “evolved over time” and the Massachusetts law is, after all, constitutional on its face. Of course, the First Amendment has not changed in the 14 years between the filing of the ACLU briefs in Hill and McCullen; the ACLU has.
The old ACLU got it right.
P.S. More from Jonathan Adler. And the Cato Institute filed this amicus brief in the case of McCullen v. Coakley.
Overreach in demand letters
But put aside whether Spin Master can win this infringement claim on the merits, consider what they asked for in their demand letter, as explained on You Rather’s blog:
1. Stop using “You Rather” and any other phrases that are similar to “Would you rather”. This includes one (yes, really) or more of the words “Would”, “You”, or “Rather”.
2. Hand over our yourather.com domain immediately
3. Tell them how much money You Rather has made (presumably to ask for that too)
4. Pay for their lawyers“One or more of the words ‘Would,’ ‘You,’ or ‘Rather.’” Presumably this is meant to prevent You Rather from just rearranging words, but this is a demand letter, not a contract. There’s no need to get cute and ask the website to agree to abandon any use of the word “you.” This is why people hate lawyers.
U.K.: “Bid to make ’emotional blackmail’ a crime”
From Britain: “Domestic abuse involving “emotional blackmail” – but no violence – could become a criminal offense carrying a heavy jail term under tough new measures published for the first time.” [David Barrett, Telegraph]:
“Critically, its [the draft’s] definition of abuse includes “controlling or coercive behavior” which would “encompass but is not limited to physical, financial, sexual, psychological or emotional abuse”.
“Controlling behavior” would also lead to criminal charges, including when a partner makes another person “subordinate”, “exploits their resources” or “deprives them of the means needed for independence”.
The offense would apply to abuse committed against any spouse, partner or former partner, regardless of gender.
As Pamela Stubbart notes at the Daily Caller, when based on purely psychological and emotional interactions and states of dependence, concepts like “control” and “coercion” are at best highly subjective affairs, inviting unpredictable legal application as well as he-said-she-said legal battles in the wake of breakups or other relationship failures. The measure would also threaten criminal liability for some speech (e.g., emotionally hurtful insults not involving threats of violence) that would often be included in definitions of free speech. Meanwhile, a ban on exploiting partners’ resources or denying partners financial independence threatens to throw a shadow of criminal liability over many marital and romantic arrangements long deemed unproblematic, whether or not egalitarian.
Barrett in the Telegraph notes that while the cross-party group of Members of Parliament who are introducing the bill do not speak for the Cameron administration, they have a record of some success at getting their ideas on domestic violence enacted into legislation. Offenses will carry a sentence of up to 14 years in prison.
Related: periodic proposals in state legislatures and elsewhere to ban “workplace bullying” (more) raise some of the same issues, as do enactments (like “Grace’s Law” in Maryland) endeavoring to ban “cyber-bullying.”
International law roundup
- Ball is rolling as Thernstrom, Kirsanow depart CRC: “U.S. National Human Rights Institution: A Bad Idea” [Steven Groves, Heritage] UN Women National Committees in US and 16 other countries advocate domestic policy change, just in case domestic pressure groups aren’t vocal enough;
- In big pickup for opponents of CRPD, the disabled-rights convention, Sen. Corker of Tennessee says he’ll oppose ratification [Josh Rogin, Daily Beast; timeline from pro-convention site; Betsy Woodruff, NRO; earlier here, etc.] Related: AMVETS pulls support.
- “Corporate war crimes begin” [James Stewart, Opinio Juris]
- “US to oppose UN climate ‘reparations’ proposal” [Michael Bastasch, Daily Caller]
- “What if Everyone Thought Congress Could Expand its Powers in Implementing Treaties?” [Duncan Hollis, Opinio Juris; earlier on Bond v. U.S. and Missouri v. Holland]
- “Kiobel Surprise: Unexpected by Scholars But Consistent with International Trends” [Eugene Kontorovich]
- U.N. agency upset that Uruguay has legalized marijuana [Jess Remington, Reason]
“Dubious achievements in privacy law”
Stewart Baker is running a year-end contest to name the most regrettable uses of privacy law over the past year. Among his nominations: the “Agriculture Department, which cited privacy grounds in refusing to name any of the beneficiaries of the notoriously fraud-ridden ‘Pigford‘ settlement”; Health and Human Services Secretary Kathleen Sebelius, who imposed millions of dollars in fines on private health companies for lacking adequate technical controls on the privacy of health data, “even when there was no evidence that any data had been compromised,” at the same time as her own department was launching healthcare.gov, a data intake site with much more critical privacy and safety flaws; racing mogul Max Mosley, who prevailed on a French court to order Google to de-index scandal coverage of Mosley’s recreational indiscretions; and federal judge Lucy Koh, for finding Gmail’s business model potentially violative of wiretap laws. All the examples above were winners in their categories, save Mosley who trailed behind two others in the category “Worst Use of Privacy Law to Protect Power and Privilege.”
John Beisner report on class actions
From the U.S. Chamber’s Institute for Legal Reform: “Authored by John Beisner of Skadden Arps, this paper introduces for discussion potential class action reforms to build on the highly-successful Class Action Fairness Act of 2005. Among the reforms suggested are measures to address cy pres class action settlements and to preserve the efficiency of federal MDL proceedings. The paper also considers other changes designed to address certain judicial misinterpretations of CAFA’s jurisdictional provisions, and identifies several additional areas of concern that may warrant reform as they develop.” [report; coverage, Washington Examiner, Daniel Fisher, Andrew Trask]
Vending machine calorie label mandate
It’s coming as part of ObamaCare (earlier here and here) and it might wind up restricting consumer choice [AP]:
The rules will apply to about 10,800 companies that operate 20 or more machines. Nearly three quarters of those companies have three or fewer employees, and their profit margin is extremely low, according to the National Automatic Merchandising Association. …
Some companies may use electronic displays to post calorie counts while others may opt for signs stuck to the machines.
Carol Brennan, who owns Brennan Food Vending Services in Londonderry, [N.H.,] said she doesn’t yet know how she will handle the regulations, but she doesn’t like them. She has five employees servicing hundreds of machines and says she’ll be forced to limit the items offered so her employees don’t spend too much time updating the calorie counts.
David Boaz comments:
In my experience, vending machines shuffle their offerings fairly frequently. If the machine operators have to change the calorie information displayed every time they swap potato chips for corn chips, then $2,200 [per operator per year] seems like a conservative estimate of costs. But then, as Hillary Clinton said when it was suggested that her own health care plan would bankrupt small businesses, “I can’t be responsible for every undercapitalized small business in America.”
Jovan Belcher’s mother sues Kansas City Chiefs
“Jovan Belcher’s mother has filed a wrongful-death suit against the Chiefs, seeking unspecified damages after the former linebacker killed his girlfriend and himself in December 2012. The lawsuit… also alleges that the team … knew, or should’ve known, that Belcher showed signs of cognitive and neuro-psychiatric impairment.” [Kansas City Star]
Border agents vs. musical instruments
What do our border control authorities have against musical instruments? First it was pianist Kristian Zimerman’s Steinway, destroyed by TSA agents because they thought the glue in it smelled suspicious. Then it was the prized cello bow that Alban Gerhardt says was snapped in two by TSA agents (bows are surprisingly costly things, and can run the price of a Mercedes). Now, according to a report in the Boston Globe, customs agents mistook a rare collection of handmade flutes for pieces of bamboo and destroyed them as illicit agricultural goods. I’ve got a discussion at Cato at Liberty.
Cato trade analyst Dan Ikenson draws my attention to this passage of Frederic Bastiat’s:
Between Paris and Brussels obstacles of many kinds exist. First of all, there is distance, which entails loss of time, and we must either submit to this ourselves, or pay another to submit to it. Then come rivers, marshes, accidents, bad roads, which are so many difficulties to be surmounted. We succeed in building bridges, in forming roads, and making them smoother by pavements, iron rails, etc. But all this is costly, and the commodity must be made to bear the cost. Then there are robbers who infest the roads, and a body of police must be kept up, etc.
Now, among these obstacles there is one which we have ourselves set up, and at no little cost, too, between Brussels and Paris. There are men who lie in ambuscade along the frontier, armed to the teeth, and whose business it is to throw difficulties in the way of transporting merchandise from the one country to the other. They are called Customhouse officers, and they act in precisely the same way as ruts and bad roads.
Further update from Foreign Policy (h/t reader JohnC): “In an e-mail exchange with NPR Music, a Customs official says no musical instruments were involved in the CPB’s actions — a claim not offered to FP. The story indicates that fresh bamboo was found in the luggage separate from Razgui’s 11 flutes. However, when American Airlines eventually delivered Razgui’s luggage, it did not contain the flutes. If both claims are true, it remains a mystery as to what actually happened to the flutes and why they didn’t show up in his luggage.” (& Greenfield, Above the Law) More: Zenon Evans, Reason.