Some lawyers actually train potential clients to find something to blow the whistle on when the prospect of termination is nigh. “But perhaps in the future this may change and ambush firings will become the norm to avoid this kind of thing.” [Coyote]
December 13 roundup
- Cakes and coercion: “Endorse the state’s right to coerce speech or conscience and you have ceded a principle that can so easily come back to haunt you.” [Andrew Sullivan, New York mag] “The legal course has some advantages. You can use state power, ultimately the barrel of a gun, to compel people to do what you think is right.” [David Brooks] Yes, courts have often found a constitutional right to discriminate, so scratch that Masterpiece Cakeshop talking point [Eugene Volokh]
- Fugitive Kentucky lawyer and disability-fraud king Eric Conn arrested in Honduras [Bill Chappell/NPR, earlier here and here]
- As White House belatedly consults, heeds seasoned counsel, lawsuits against travel ban begin running out of steam [Ilya Shapiro, The Hill]
- Cheers for restoring schools’ discretion to serve 1 percent chocolate milk, USDA, and next bring back whole milk [Stephanie Ebbs and Erin Dooley/ABC News, earlier]
- Court hears oral argument on sports betting and state commandeering case Christie v. NCAA [Ilya Shapiro/Cato, Jacob Sullum, earlier]
- At recent federal court showdown with Waymo, things went from bad to worse for Uber’s lawyers [Cyrus Farivar, ArsTechnica]
Study: Occupational licensing reduces interstate migration
Potentially an important observation [Janna E. Johnson and Morris M. Kleiner, NBER]:
Occupational licensure, one of the most significant labor market regulations in the United States, may restrict the interstate movement of workers. We analyze the interstate migration of 22 licensed occupations. Using an empirical strategy that controls for unobservable characteristics that drive long-distance moves, we find that the between-state migration rate for individuals in occupations with state-specific licensing exam requirements is 36 percent lower relative to members of other occupations. Members of licensed occupations with national licensing exams show no evidence of limited interstate migration. The size of this effect varies across occupations and appears to be tied to the state specificity of licensing requirements. We also provide evidence that the adoption of reciprocity agreements, which lower re-licensure costs, increases the interstate migration rate of lawyers. Based on our results, we estimate that the rise in occupational licensing can explain part of the documented decline in interstate migration and job transitions in the United States.
Medical roundup
- In welcome reversal of Obama-era ban, FDA will once more permit direct-to-consumer genetic testing [Meghana Keshavan/STAT News, FDA press release]
- Will California law hold a pharmaceutical maker liable — in perpetuity — for a drug that it did not make and did not sell? [Steven Boranian/Drug & Device Law, PLF on T.H. v. Novartis]
- Litigation funding group chases clients in hip replacement litigation [PR Newswire]
- ACA penalizes hospitals for high Medicare readmission rates, but new study links that policy to higher mortality for heart failure patients [Arnold Kling, Ankur Gupta et al., JAMA Cardiology, Cristina Boccuti and Giselle Casillas, Kaiser Family Foundation]
- Litigation tourism model that has done well for plaintiff’s bar now circling drain after Supreme Court’s Bauman, Bristol-Myers Squibb decisions [Jim Beck, Drug & Device Law, more, yet more; related on West Virginia, and from Michelle Yeary on choice of law and forum non conveniens]
- “FDA Commissioner Scott Gottlieb Goes to Bat For Evidence-Based Opioid Policies” [Mike Riggs, Reason] “Abuse-Deterrent Opioids Cross an Ethical Line” [Jeffrey Singer, Orange County Register]
U.S. Department of Justice: We’re ending regulation by guidance
The U.S. Department of Justice, November 17 [press release/memo]:
Today, in an action to further uphold the rule of law in the executive branch, Attorney General Jeff Sessions issued a memo prohibiting the Department of Justice from issuing guidance documents that have the effect of adopting new regulatory requirements or amending the law. The memo prevents the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations.
In the past, the Department of Justice and other agencies have blurred the distinction between regulations and guidance documents. Under the Attorney General’s memo, the Department may no longer issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch….
“Guidance documents can be used to explain existing law,” Associate Attorney General Brand said. “But they should not be used to change the law or to impose new standards to determine compliance with the law. The notice-and-comment process that is ordinarily required for rulemaking can be cumbersome and slow, but it has the benefit of availing agencies of more complete information about a proposed rule’s effects than the agency could ascertain on its own. This Department of Justice will not use guidance documents to circumvent the rulemaking process, and we will proactively work to rescind existing guidance documents that go too far.”
This is an initiative of potentially great significance. For many decades, critics have noted that agencies were using Dear Colleague and guidance letters, memos and so forth — also known variously as subregulatory guidance, stealth regulation and regulatory dark matter — to grab new powers and ban new things in the guise of interpreting existing law, all while bypassing notice-and-comment and other constraints on actual rulemaking. To be sure, many judgment calls and hard questions of classification do arise as to when an announced position occupies new territory as opposed to simply stating in good faith what current law is believed to be. But the full text of the memo shows a creditable awareness of these issues. Note also, even before the Justice memo, Education Secretary Betsy DeVos’s statement in September, on revoking the Obama Title IX Dear Colleague letter: “The era of ‘rule by letter’ is over.”
Another notable pledge in the DoJ press release:
The Attorney General’s Regulatory Reform Task Force, led by Associate Attorney General Brand, will conduct a review of existing Department documents and will recommend candidates for repeal or modification in the light of this memo’s principles.
Note also this recent flap over certain financial regulations and the possibility that they may have been issued without notice to Congress, which could preserve Congress’s right to examine and block them under the terms of the Congressional Review Act.
Environment roundup
- Getting deserved attention: blog post on hundred little regulatory obstacles that can block piecemeal redevelopment of commercial space [Johnny at Granola Shotgun via John Cochrane and Tyler Cowen]
- Suit that asserted legal personhood for Colorado River: a good case for sanctions? [Greg Herbers/WLF, Marianne Goodland, Colorado Springs Gazette]
- Large U.S. farm study finds no cancer link to Monsanto glyphosate (Roundup) weedkiller, state of California take note [Kate Kelland, Reuters, earlier here, here]
- Federalist Society video of address by EPA administrator Scott Pruitt at last month’s convention;
- Prince George’s County, Md., in the Washington suburbs, is considering a return to the practice of letting county council second-guess development approvals. Bad policy and corruption risk alike [David Whitehead and Bradley Heard, Greater Greater Washington]
- “Claims for unconstitutional takings of property against state actors should not be treated differently than other fundamental rights claims and relegated to second-class status.” [Ilya Shapiro, Trevor Burrus, and Meggan DeWitt, Cato on Knick v. Township of Scott, Pennsylvania]
Charles Dickens in Tax Court, courtesy Judge Mark Holmes
Bob Kamman, Procedurally Taxing: “I searched other Tax Court orders and decisions available at the Court’s website. Surprisingly, this is the only reference to Jarndyce. I searched for Dickens. There were petitioners named Dickens, and petitioners with an address on Dickens Street. But the only other Dickens reference came from an opinion by the same Judge Holmes” [U.S. Tax Court Judge Mark Holmes, who has won praise for his writing style]. It was a quote from Tale of Two Cities about oppressive rural taxation:
[The town’s] people were poor, and many of them were sitting at their doors, shredding spare onions and the like for supper, while many were at the fountain, washing leaves, and grasses, and any such small yieldings of the earth that could be eaten. Expressive signs of what made them poor, were not wanting; the tax for the state, the tax for the church, the tax for the lord, tax local and tax general, were to be paid here and to be paid there, according to solemn inscription in the little village, until the wonder was, that there was any village left unswallowed.
[Image from Joseph Hémard’s illustration of the French Tax Code, via Yale Law Library Rare Books Blog]
Now unsealed: official report on Wisconsin John Doe probes
After the state’s high court ordered files of the politically charged Wisconsin John Doe II investigation destroyed, something else happened instead: “The Guardian published a leaked trove of documents from the John Doe II proceedings, including court filings, draft filings, and selected evidence prepared and kept by only some members of the prosecution team.” A just-unsealed report from the Wisconsin Department of Justice suggests a range of possible illegalities and rights violations, as well as political motivations, in the conduct of the investigators [“Warren Henry,” The Federalist]:
[Th]hree hard drives in particular contained nearly 500,000 unique emails (from Yahoo and Gmail accounts, for example) and other documents (email attachments, for example) totaling millions of pages. The hard drives included transcripts of Google Chat logs between several individuals, most of which were purely personal (and sometimes very private) conversations. GAB [a state agency involved in the investigations] placed a large portion of these emails into several folders entitled, ‘Opposition Research’ or ‘Senate Opposition Research.’
For example,
investigators obtained, categorized, and maintained over 150 personal emails between [state] Senator Leah Vukmir and her daughter, including emails containing private medical information and other highly personal information. [WIDoJ] was unable to determine why investigators ever obtained, let alone saved and labeled, over 150 very private and very personal emails between a Senator and her child, or why investigators placed those emails in a folder named ‘Opposition Research.’
Earlier here.
Update: Oregon admits error in traffic engineer case
As reported in April, the state of Oregon fined Mats Järlström of Beaverton $500 for supposedly practicing engineering without a license after he sent a letter to state officials challenging traffic camera practices, including various calculations, and mentioning his background as an electrical engineer. Now the state has admitted that it erred and violated his constitutional rights, and refunded his fine. [Reese Counts, AutoBlog]
Monument designations and White House proclamations
Some imagine President Obama can expand the bounds of national monuments by unilateral proclamation, but President Trump cannot shrink them back by the same mechanism. But that’s not how it works, explained Jonathan Wood in a September piece on the Bears Ears and Grand Staircase/Escalante controversy.
More: Ronald Bailey. And Randal O’Toole on a high-profile lawsuit:
I visited the Patagonia web site looking for some Christmas presents yesterday and learned that “the president stole my land.” How horrible! So I looked into it and discovered that President Trump took federal land that was managed by a particular set of federal agencies under a particular set of restrictions and changed it into federal land managed by the very same federal agencies under a slightly different set of restrictions. Not to jump on Patagonia, whose clothing I’ve always enjoyed, but where’s the theft in that?