“By assailing sensible conservatives as sexists, racists, and imbeciles, they paved the way” for someone who embodies their worst fears [Tom Nichols, Daily Beast in January]
Archive for March, 2016
EEOC’s “Position Statement Policy”
The Equal Employment Opportunity Commission requires that employers state their account of a dispute at an early stage. Combined with a new policy of automatic hand-over of the information to plaintiff’s lawyers, it amounts to you-go-first discovery and an unreciprocated peek at the opposition case [Merrily Archer; Parker Poe]
Court unseals suit charging kickbacks in Mississippi state legal work
“A federal appeals court in New York has ordered a lawsuit by a former attorney with Bernstein Litowitz unsealed, saying the public has the right to see allegations the prominent class-action firm paid an attorney with connections to the Mississippi Attorney General Jim Hood’s office more than $100,000 to help secure work with the state.” [Daniel Fisher/Forbes] “When he had protested the unnecessary project given to [assistant attorney general DeShun] Martin’s wife, [Bruce] Bernstein says he was told by a fellow partner, ‘Do you ever want us to work with Mississippi again?'” [John O’Brien/Legal NewsLine] The allegations in the lawsuit, which was later settled, were never tested in court and the law firm denies wrongdoing, saying the suit had made “sensational, unfounded accusations.” [Alison Frankel/Reuters]
Will the Supreme Court now turn against employment arbitration?
In a case involving Murphy Oil, the National Labor Relations Board contends that “a mandatory arbitration provision violates the National Labor Relations Act. That has been the position of the NLRB for some time now, notwithstanding almost universal rejection by the courts.” The Fifth Circuit, unsurprisingly, joined other precedent and upheld the employer. Until just a short time ago, given a Supreme Court on which Justice Antonin Scalia had penned strong opinions in favor of freedom to contract in favor of arbitration as a choice, “employers would not have been terribly concerned if the NLRB had appealed.” But now? [Michael Fox, Jottings By an Employer’s Lawyer]
Update: Hubert Vidrine prosecution
In 2011 we wrote about the remarkable case in which Opelousas, La. plant manager Hubert Vidrine “won a rare $1.7 million verdict against the federal Environmental Protection Agency (EPA) for malicious prosecution, with a judge lambasting EPA’s enforcement apparatus for ‘reckless and callous disregard’ of Vidrine’s rights.” According to a local paper’s report, a federal officer “was accused of targeting Vidrine because of his outspokenness and choosing an investigation in Louisiana to be close to a woman with whom he was having a sexual affair.” Defenders of the agency were at pains to portray it as an “unusual situation.”
Now there’s an update to report [FindLaw, h/t Institute for Justice “Short Circuits”]. The factory’s owner, Trinity Marine Products, had also been prosecuted in the case, but was not involved in Vidrine’s personal quest for justice afterward:
According to court documents, Trinity wasn’t even aware of the federal agents’ affair and its concealment until 2011 when one of Trinity’s employees read a blog post mentioning the affair and a DOJ press release giving details. Trinity promptly filed a FTCA claim in 2012.
The question was whether the company’s claim was untimely under the statute of limitations because the prosecution had been nine years earlier. A Fifth Circuit panel has now ruled that the suit can go forward under equitable principles because the government had not established that Trinity could by reasonable diligence have learned the reason for its injury earlier. FindLaw again:
The fact of the matter is this: the blog piece was only written because there was an unsealing of court documents that had detailed the motive behind the FBI agents’ lies. And since these lies were the cause of Trinity’s eventual injury (criminal indictment), no reasonable due diligence would have uncovered them.
Schools roundup
- Fear of regulators drives many campuses to restrict speech [Greg Lukianoff of FIRE interviewed by Caleb Brown, Cato podcast] New UCLA Title IX policy requires faculty to inform on “possible” sex harassment, and Prof. Bainbridge objects;
- Tributes to my much admired colleague, the late Cato Institute education scholar Andrew Coulson [Neal McCluskey and Jason Bedrick, Adam Schaeffer, Nick Gillespie/Reason]
- “Total Law School Enrollment at Lowest Point Since 1977; 1L Class Size Lowest Since 1973” [Derek Muller]
- New Jersey: “Elizabeth Public Schools Spend More on Attorneys than Textbooks, Heat or Electricity” [WPIX (autoplays)]
- “I began to see the social sciences as tribal moral communities, becoming ever more committed to social justice, and ever less hospitable to dissenting views.” Jonathan Haidt interviewed by John Leo [Minding the Campus]
- Furor continues over U.S. Department of Education funding of “facilitated communication” with profoundly disabled persons [David Auerbach, Slate]
- “Rhode Island: Children Under 10 Shall Not Be Left Home Alone, Even Briefly” [Lenore Skenazy]
Danger: out-of-state geologists!
Occupational licensure, defended: “All those geology companies in Georgia and Alabama that have that certificate of authorization under their state will come into Florida to do that work and then our geologists will end up unemployed.” [Jim Ash, WFSU]
Related: “California’s Bipartisan Push Against Occupational Licensing” [Steven Greenhut, Reason]
Originalism and cell phone unlocking
In a case raising some of the same issues as the dispute over forcing Apple to unlock the San Bernardino killer’s iPhone, a federal magistrate judge in New York has ruled that the All Writs Act does not empower courts to order the unlocking of an alleged drug dealer’s phone. The legal issues are complex, but — I argue in a short piece at Ricochet — belie the notion that originalism in judicial interpretation is going to fade away with Justice Scalia no longer on the Supreme Court. More background: Sarah Jeong.
March 2 roundup
- Pennsylvania bill would restrict the pre-paid business cemeteries could do, which by remarkable coincidence would benefit their competitors on the funeral home side [Allentown Morning Call]
- How to get capital out of China? Lose a lawsuit on purpose [Chuin-Wei Yap, WSJ Law Blog]
- Arms-trafficking sting caught crusader against videogames, guns: “Judge Sentences Ex-California Senator Leland Yee to Five Years for Racketeering” [KNTV (auto-plays), earlier]
- Workplace bias, which can mean a lot of things, would be an ethics violation for lawyers under proposed ABA model rule [ABA Journal, more]
- Breaking: New York court denies Donald Trump’s bid to throw out AG Eric Schneiderman’s suit over Trump University [ruling, The Hill, Eric Turkewitz] More background: Lowering the Bar.
- Grounding interstate comity: California Assemblyman Evan Low (D-Campbell) wants to ban state-funded travel to sister states with religious conscience laws [Bay Area Reporter (“discrimination of any kind …will certainly not be tolerated beyond our borders.”)]
- “NY Times: Contaminated Property Makes For Costly Inheritance” [Paul Caron/TaxProf]
How to revive blasphemy law in just a few easy steps
Denmark had allowed its old blasphemy law to fall into disuse, but now it’s reviving prosecutions by way of its ban on hate speech purportedly aimed at religious groups [Jacob Mchangama, Columbia U. Global Freedom of Expression & Information Jurisprudence Project]