“An oft-forgotten provision of Obamacare is being pushed over the finish line by Trump’s FDA.” [Helena Bottemiller Evich, Politico; Jacob Sullum (FDA overstates evidence); Mike Riggs (FDA honcho Scott Gottlieb “is not a free market firebrand”); Christian Schneider, USA Today] Earlier on FDA menu labeling here.
“Invalidating Quebec’s entire statute book would certainly provoke a reaction.”
“Last week, the Quebec and Montreal bar associations dropped a bombshell into the Quebec political and legislative scene with a lawsuit seeking a declaration from the courts that the statutes and laws of Quebec are invalid in their entirety because the process by which they were enacted violates the Canadian Constitution.” [Matthew P. Harrington, Montreal Gazette] The bars “state the problem is the laws are drafted in French and then translated into English only after the fact instead of simultaneously,” despite an interpretation arising from the British North America Act that laws must be enacted simultaneously in both languages. The practice also hands over to the assembly’s translators a degree of discretion over what the law should be that can properly be exercised only by lawmakers themselves. [Canadian Press/Montreal Gazette] Invalidating a province’s laws because of this issue would not be unprecedented, Harrington says: in 1985 the Supreme Court of Canada “found that Manitoba’s unilingual enactment process required that a century’s worth of statutes be declared invalid and that they be re-enacted in both official languages.”
Google and Facebook turn away bail bond ads
Two things that can both be true:
1) we should find a better system than cash bail;
2) in the mean time bail bond services provide a needed service for some families.
Or as I put it in my new National Review piece:
This week Google and Facebook announced that they would stop accepting ads for bail-bond services. It’s the perfect moral gesture for our times: It makes a grand statement, keeps pressure groups happy, reminds us that the tech giants have weight to throw around, and leaves its intended beneficiaries no better and perhaps imperceptibly worse off.
I go on to discuss stigmatization as a substitute for policy, which sorts of practices if adopted would probably serve as a substitute for cash bail, and the widely held notion that mass incarceration in the contemporary U.S. arose from a plot to expand business revenue. The piece concludes:
If one is going to be suspicious of mercenary motives in the justice system, I recommend starting with the providers among whom defendants’ families do not get to pick and choose in their hour of need in a relatively competitive market. That would include probation providers and jail phone-call providers — and, yes, some firms involved with private prisons.
Of course, those companies aren’t big advertisers, since the only customer they need to convince is the law-enforcement agency. So Google and Facebook are spared the need to worry about what posture to strike toward them.
Whole thing here. For a different view, here’s Google’s Senior Counsel on Civil and Human Rights writing together with the chairman of Freedom Partners Chamber of Commerce and general counsel for Koch Industries. [Malika Saada Saar and Mark Holden]
FCPA: “Making us feel better isn’t a good enough reason for a law.”
Compliance Week invited me to write on what’s wrong with the Foreign Corrupt Practices Act. Excerpt:
Scenario: an American city hires an Asian-based bank to float a bond deal. Scandal! Turns out the bank wined and dined the mayor and council and treated them to sports events. After an investigation, the Asian bank agrees to put things right by paying millions of dollars to the government of France.
That’s crazy, right? What does any of this have to do with the government of France? But it’s certainly no crazier than the workings of our own Foreign Corrupt Practices Act, under which European companies have been made to pay penalties of $398 million and $240 million to the U.S. government over bribes paid to officials in Nigeria and Iran, respectively….
FCPA oversteps the proper bounds of federal lawmaking in at least four ways: it is extraterritorial, vicarious, punitive, and vague….
The business community in Washington has been pressing for legislation to clarify the 1977 law’s requirements, but I suggest we go further and re-examine things more fundamentally, including (beyond the problems above) the law’s break from principles of mutualism and comity in foreign relations and its role in scaring capable bidders away from infrastructure projects that could help lift some rural populations out of desperate poverty. “Making us feel better isn’t a good enough reason for a law.”
Full text here, and earlier FCPA coverage here, here, here, here, and here [cross-posted and expanded from Cato at Liberty] A few more links: Mike Koehler/FCPA Professor on the Total case as “cash cow”; Manhattan Institute 2013 report and more coverage on now-dormant Point of Law; Brian Hoffman, Holland & Hart; Foley & Lardner.
Labor and employment roundup
- “For years, a Texas electric utility company and its union feuded over the installation of automated smart meters; the company wanted them; the union didn’t, fearing they would put meter-readers out of work. A repairman for the company testifies to state legislators that the smart meters are combustion prone and damaging homes. Company: Which isn’t true. You’re fired. NLRB: Can’t fire him. His testimony was protected union activity. D.C Circuit: Maybe not. We’re very deferential to the Board, but even so, the NLRB’s reasoning here is ‘too opaque.'” [John Kenneth Ross, Short Circuit, on Oncor v. NLRB]
- May Day replay: What happened at the Haymarket Affair? [John J. Miller] A Wikipedia footnote [Timothy Messer-Kruse, Chronicle of Higher Education]
- Decline in number of U.S. manufacturing jobs is not owing to decline in unionization [Colin Grabow, Cato]
- More for the “I thought contractual non-union arbitration was just a racket to benefit employers” files [Eric B. Meyer, Employer Handbook (prospective “tsunami” of arbitration claims against chain restaurant); Daniel Schwartz (exotic dancers win big in private arbitration)]
- “Regulating the Modern Workforce,” Federalist Society Regulatory Transparency Project symposium video with James C. Cooper, Clark Neily, Ryan Nunn, Gabriel Scheffler, John Yun;
- “Consumers do not have the option of abandoning unionized public services if they become too expensive and inefficient, as they can do with unionized services in the private sector.” [Chris Edwards, Cato on Janus v. AFSCME]
Accreditation process pulls law schools leftward
Mark Pulliam at Liberty and Law explores a theme I raised in Schools for Misrule: the ABA accreditation process for law schools is ideologically fraught and pushes the schools toward certain prescribed views of social justice. Even for well-established, high-ranking schools the process can be an arduous one, propelled by “what the ABA euphemistically calls ‘site visits,’ but would more commonly be referred to as compliance inspections.” And the standards are not neutral — in particular not Standard 206, which establishes “diversity and inclusion” as one of the association’s accreditation desiderata. Under that standard, site visitors and reviewers investigate the institution’s “commitment” to diversity, evaluating that commitment in light of the “totality of the law school’s actions and the results achieved.”
Schools are required, for example, to “create a favorable environment for students from underrepresented groups” The vagueness and open-endedness of such standards — might it contribute to a less favorable environment, for example, for a school to be short on course offerings or visiting speakers in a given identity-related area? — is sure to “invite subjective application, prompting schools to ‘over-comply’ to avoid an adverse finding.” No wonder schools cluster at the safe end by maintaining well-staffed diversity and inclusion departments, prioritizing demographic over intellectual diversity in faculty hiring, and cultivating attention to identity categories in student life. The piece kicks off what Pulliam says will be a periodic series.
May 9 roundup
- Since political belief has not been made a protected class under New York public accommodations law, it’s no surprise — various memes notwithstanding — that a judge would find taverns entitled by law to deny service to a candidate’s supporters [Julia Marsh, New York Post]
- Florida: “Attorney faces federal prison after admitting role in $23M auto insurance fraud” [Paula McMahon/Sun-Sentinel, more]
- Pardons, double jeopardy, and now-departed Attorney General Eric Schneiderman: “Historically, New York was proud of providing greater constitutional protections than the feds offered, but that was before Trump.” [Scott Greenfield]
- Megan McArdle follows up on her Alfie Evans column (and thanks for mention) [Washington Post, earlier]
- Not your conventional presidential lawyer: two reports look at the legal practice of attorney Michael Cohen [Ilya Marritz and Andrea Bernstein/WNYC, Seth Hettena/Rolling Stone]
- Harshing the mellow: Regulation, taxes driving some cannabis culture back underground in California [David Boaz, Cato]
Hot milk warning
From Ian Williamson on Twitter:
Overlawyered pic.twitter.com/LU4169TD70
— Ian Williamson (@IanWTechLaw) May 4, 2018
Canada follows a UN lead on indigenous rights
The government of Prime Minister Justin Trudeau has moved to support bringing Canada’s laws into line with the terms of the U.N. Declaration on the Rights of Indigenous Peoples, something predecessor administrations had resisted. The result is likely to involve major changes to the current rights and obligations of Canadians [Matt Pollard, Opinio Juris; earlier on the Declaration here and here, and related here, here and here]
Distantly related, perhaps: a symposium on “Global Justice for Indigenous Languages” [Columbia University Institute for the Study of Human Rights]
Frequent flyer education complainants
“According to the Education Department, 41 percent of the 16,720 complaints filed in the 2016 fiscal year came from three people,” one of whom has filed thousands of similar complaints over the web accessibility of schools’ websites. Now the department intends to wrest back some control of its civil rights docket, which sounds like a long overdue move. [Erica L. Green, New York Times]