- California becomes fourth state to ban asking job applicants about salary history. Bad law. [Gerald Skoning, WSJ] Together with required disclosure of “pay range,” ban on salary history inquiries could hurt studios, talent biz [Philip Bonoli, Forbes]
- Claim: age-targeted Facebook employment ads unlawful under age discrimination law, even if hiring firms are listing jobs and soliciting applicants through many other channels as well [Julia Angwin, Noam Scheiber, and Ariana Tobin, New York Times] More: Charles Sullivan, Workplace Prof (“It’s not at all clear that the practice is illegal under current federal law.”)
- “‘Opt Out’ Provisions May Provide Path Forward for Class-Action Waivers in Employment Contracts” [Andrew Trask, Class Action Countereasures]
- Payments to workers’ comp attorney: “Former NBA Player Pleads Guilty to Charity Fraud Scheme” [Phil Yacuboski, WCI360] Report: jihadist group in Colorado in 1990s funded acts of terror through workers’ comp fraud [Liz Carey, WCI360]
- Will #MeToo scandal result in a leftward lurch in employment law? Some certainly hope so [Terri Gerstein, On Labor]
- Weirdly influential “pay workers enough to buy back the product” fallacy, associated with Henry Ford, doesn’t work for aircraft carriers or matches or most other products [David Henderson, earlier here, etc.]
Courts are no place to set opioids policy
The “American public may soon pay for a billion-dollar wealth transfer from the pharmaceutical industry to state and local government,” writes Margaret Little:
Proceedings moving apace before Ohio U.S. District Judge Dan Polster bode the worst of all solutions to the opioid crisis – a swift global settlement modelled on the tobacco settlement of the 1990s. The result will inflict lasting damage on our constitutional order and do virtually nothing to solve the opioid crisis. Opioid abusers, just like smokers in the infamous tobacco settlement, stand to receive nothing. A single unelected federal judge will have feigned to have “solved” opioids, levied billions in unlegislated taxation, made drugs more costly and harder to secure for non-abusers while leading abusers to turn to heroin and fentanyl, and filled state and local coffers with revenue-by-judiciary while richly endowing trial lawyer barons – hand-picked by the judge – with billions in public funds. A swift education of the American public about this abuse of the judicial process is in order, not a swift settlement.
More: “After New York Sues Opioid Manufacturers, Drug Policy Experts Warn That Legal Action Won’t Save Lives” [Zachary Siegel, In Justice Today] The FDA is charged with setting uniform national policy on pharmaceuticals; will it allow regulatory power to be transferred pell-mell to MDL court or to the actors in a resulting settlement? [WLF] And from Jim Beck, Drug and Device Law:
…injuries from illegal opioid use are precisely the sort of injuries that the in pari delicto doctrine was designed to preclude from being recovered in litigation.
Well, what about the states as plaintiffs?…[W]ho can restrict the rights of physicians to prescribe drugs for off-label uses? That would be the states, in their traditional roles of regulators of medical practice…. States could ban precisely the off-label uses they are complaining about, but they haven’t.
Earlier here.
February 1 roundup
- “She Asked for Help for Postpartum Depression. The Nurse Called the Cops.” [Darby Saxbe, Slate] Under one Montana prosecutor’s announced policy, pregnant mother “proven to be using alcohol … might be monitored by law enforcement or sent to jail.” [Andrew Turck, Big Horn County News]
- “The Florida Supreme Court has agreed to decide whether a judge may be Facebook friends with lawyers who appear before the judge.” [Raymond McKoski, Orlando Sentinel]
- Nation’s highest military court unanimously tosses sexual assault conviction of Coast Guard enlisted man, finding juror selection stacked by higher-ups; of seven jurors, four were trained sexual assault victim advocates [Rowan Scarborough, Washington Times; decision]
- Report on legal landscape of cottage food industry [Jennifer McDonald, Institute for Justice] Deregulation efforts of Trump administration have yet to reach food sector [Baylen Linnekin]
- So large and so diverse is the 400-member lower house of the New Hampshire legislature that it appears to contain a sovereign citizen believer [Jack Smith IV, Mic]
- “Stash House Stings: When the Government Can Invent Crimes and Criminals” [Trevor Burrus and Reilly Stephens]
Yes, there’s footage of the shooting. No, you can’t see it.
New York City police union argues that a (ridiculously broad) New York labor law may forbid public release of bodycam footage in misconduct cases [Ed Krayewski. Reason]
California scheme to fine waiters $1,000 for offering plastic straws
Under a California bill introduced by Assembly Majority Leader Ian Calderone and backed by the L.A. Times, restaurants would be permitted to give plastic straws only to patrons who ask for them. A widely cited statistic in support of the measure turns out to be based on research done by a 9 year old. [Christian Britschgi, Reason; who updates the story to say the sponsor now intends to revise the bill to take out the fines]
State of the Union address 2018 live-tweets
I live-tweeted President Trump’s address last night (text) and here are some highlights:
Hoping that tonight — unlike in his first big speech as President, the inaugural — Trump mentions the Constitution. It's the foundation for all the rest. https://t.co/TNGG0Xwzf1 #CatoSOTU
— Walter Olson (@walterolson) January 31, 2018
"To speak on behalf of the American people…" That's not what a President does in a #SOTU. #CatoSOTU
— Walter Olson (@walterolson) January 31, 2018
Figures from Maryland indicate that even in a state w/ high SALT deductions, federal bill will indeed cut taxes for big majority of taxpayers https://t.co/GCnRZTcSoi #CatoSOTU
— Walter Olson (@walterolson) January 31, 2018
One triumph of the new tax bill: easing tax treatment of repatriated overseas profits, which has already led to blockbuster good news from Apple. #CatoSOTU
— Walter Olson (@walterolson) January 31, 2018
No, the "Star-Spangled Banner" is not an "ode to slavery." https://t.co/aQkSFeVLw1 #CatoSOTU
— Walter Olson (@walterolson) January 31, 2018
Yay Gorsuch, seriously. #CatoSOTU https://t.co/I4nWYGdc2L
— Ilya Shapiro (@ishapiro) January 31, 2018
Was Trump hinting that he wants to loosen the civil service tenure rules that entrench underperforming federal employees? Good idea, if so #CatoSOTU https://t.co/vROiyGYULl
— Walter Olson (@walterolson) January 31, 2018
In his SOTU, Trump suggested easier firing of bad federal workers. Indeed, federal firing rate is just 1/6 of private firing rate https://t.co/6YkzPq0bc8 #CatoSOTU
— Chris Edwards (@CatoEdwards) January 31, 2018
Trump is returning again and again to the good economic news. Who can blame him? There's a whole lot of it. #CatoSOTU
— Walter Olson (@walterolson) January 31, 2018
A "right to try" experimental treatments for the gravely ill is a praiseworthy goal, but more complicated legally than it sounds https://t.co/JWBUoxMj5g #CatoSOTU https://t.co/Y0bd7NgPfm
— Walter Olson (@walterolson) January 31, 2018
Streamlining the federal project permitting and approval process has the potential to be one of Trump's best and most lasting reform ideas #CatoSOTU
— Walter Olson (@walterolson) January 31, 2018
Trump infrastructure plan: good on regulations, bad on spending https://t.co/fWVVx3LdzZ #CatoSOTU
— Chris Edwards (@CatoEdwards) January 31, 2018
Energy companies would put 7 years of work, resources, and planning into a project. Then their project would get denied at the 11th hour … not a way to do business. #CatoSOTU https://t.co/sZ48Frw743
— vanessa brown calder (@vanessabcalder) January 31, 2018
Here's an overview of some of the possible consequences of government-provided paid family leave. https://t.co/3nXM5mGtxe #CatoSOTU
— vanessa brown calder (@vanessabcalder) January 31, 2018
More on family leave here.
Free trade is fair trade, and it might be time to read some Ricardo. #CatoSOTU https://t.co/6Z4124UTPq
— Inu Manak (@inumanak) January 31, 2018
Best of Overlawyered — December 2017
- FATCA, the expatriate financial reporting law, may soon vex the British royal family;
- Passenger asked to leave US Airways flight after emotional support pig becomes disruptive;
- Quebec lawmakers to shopkeepers: don’t greet customers with “Bonjour hi,” might make English speakers feel too welcome;
- “Now unsealed: official report on Wisconsin John Doe probes“;
- Philadelphia city council votes to ban bulletproof glass in many delis, and more;
- D.C.’s ordinance requiring child care workers to have degrees in early childhood development: the year’s worst law?
- Penalties mount skyward: Oregon appeals court upholds $135,000 cake fine.
CCAF contests $8.5 million Google privacy settlement
It’s a cy pres special: members of the injured class will get no part of an $8.5 million settlement Google negotiated with plaintiff’s lawyers over a data privacy lapse. “Instead, the money is to be split among the plaintiffs’ attorneys, who billed their time at $1,000 an hour, and others. The others are cy pres recipients, or organizations that are not parties in the suit: Carnegie Mellon University; World Privacy Forum; the Center for Information, Society and Policy at the Chicago-Kent College of Law; Stanford Center for Internet and Society; Harvard University’s Berkman Center; and AARP Inc.” Ted Frank’s Center for Class Action Fairness is asking the Supreme Court for a writ of certiorari after its objections were turned down by lower courts. [Dee Thompson, Legal NewsLine, earlier here and here (Beck: “cy pres abuse poster child”)]
Plus: Bank of America settlement will now yield cy pres windfall for five University of California law schools of $150,000 rather than $20 million. Easy come, easy go? [ABA Journal]
Free speech roundup
- Two new podcast series on free speech: “Make No Law,” from Ken White (Popehat) on Legal Talk Network; Clear and Present Danger: A History of Free Speech from Jacob Mchangama for FIRE and other groups;
- No, Section 230 of the Communications Decency Act does not require tech companies to provide a “neutral public forum.” Has Sen. Ted Cruz been properly briefed on this? [John Samples]
- “Arizona naturopath Colleen Huber is suing me in Germany for defamation over my opinions about her so-called natural cancer treatments and research.” [Britt Hermes, Naturopathic Diaries]
- “Should the Government Get to Define ‘Native-American’ Art? One Woman’s Free Speech Fight” [Paul Detrick, Reason]
- “Minnesota prohibits any insignia deemed to be “political” — as determined solely at the discretion of the on-site election judges—from being worn into a polling place.” Overbroad? [Ilya Shapiro and Reilly Stephens on Cato brief in Minnesota Voters Alliance v. Mansky]
- Free speech was under fire in 2017 [Jeffrey M. McCall, Providence Journal]
Free-range kid legislation
“The Utah State Legislature is reviewing a bill that would decriminalize the actions of responsible parents who let their kids walk or play outside” [Lenore Skenazy, Reason, more]