- Highlights from the career of Sheriff Joe Arpaio, newly pardoned by President Trump [Jon Gabriel/USA Today, Phoenix New Times thread on Twitter] Still vividly remembered: the Thomas-Arpaio raids on elected officials, judges, and journalists who’d crossed the sheriff [samples here and here from our coverage; Terry Carter, ABA Journal]
- Fran and Dan Keller, freed from Texas prisons after 21 years in Satanic abuse hysteria, finally getting official declaration of innocence (+ $3.4 million) [AP/CBS, Michael King, Austin Chronicle]
- Cops fired even for outrageous misconduct often win reinstatement, investigation finds [Washington Post] “Police Won’t Say Whether Cops Caught Fabricating Charges Were Disciplined” [Ed Krayewski, Connecticut]
- “A Rogues’ Gallery of Bad Forensics Labs” [C.J. Ciaramella]
- You can come back above ground now: NYC dismisses 644,000 stale arrest warrants for minor offenses [James C. McKinley, Jr., New York Times]
- Deferred prosecution agreements (DPAs) turn U.S. Department of Justice into regulator without accountability [James Copland and Rafael Mangual, Manhattan Institute]
Web accessibility advocates breaking through in court?
Recently the University of California, Berkeley, took down online lecture and course content that it had offered free to the public, rather than risk liability for not modifying them so as to be conveniently usable by members of the public with hearing, visual, or manual disabilities. Harvard and M.I.T. had already been sued on similar grounds.
Now imagine the Berkeley take-down times 10,000 — a world in which private commercial, educational, and non-profit entities alike have legal incentive to de-publish any web content they do not think bulletproof against claims of lack of ADA accessibility. That’s not just imagining. It’s the world we’re looking at as a number of federal courts, setting aside years-old precedent, have begun to accept plaintiffs’ arguments that the ADA applies broadly to the web. As freelance lawsuits against private defendants proliferate, the choice is plain: either act to stop this trend, or expect widening disruption and takedown of formerly free web content.
In a much noted June case against the Winn-Dixie supermarket chain, a federal court accepted the notion that the store could be sued under the ADA because its website was a “place” of public accommodation, like a brick and mortar store. As Frank Cruz-Alvarez and Rachel Canfield observe in a Washington Legal Foundation paper, “the court found that the website was ‘heavily integrated’ and a ‘gateway’ to the physical stores, notwithstanding that the website limits customer participation to acquiring in-store coupons, refilling existing prescriptions for in-store pick-up, and utilizing a store locator function.” Since then federal courts have ruled favorably on ADA-for-the-web claims in more than one other case, including a decision by Judge Jack Weinstein of the Eastern District of New York in a case against Blick Art Materials.
I’ve been warning for a long time that web accessibility has the potential to be one of the most damaging and onerous regulatory initiatives in memory. It’s true that with courts split on the issue there is a chance that at some point the U.S. Supreme Court will take a case allowing to resolve the uncertainty and — if we are lucky — uphold earlier precedents such as that in a 2002 case in which a court dismissed a lawsuit against Southwest Airlines. In the mean time, entrepreneurial lawyers have been filing hundreds of lawsuits against local and national businesses over their websites, many of which settle for money out of court, and on the current momentum will soon be suing thousands more. Millions of existing web presences are uncompliant and easy targets for litigation. The real answer is for Congress to step in.
[cross-posted from Cato at Liberty]
Ex-offenders and occupational licensure
In many states, a criminal record acts as bar to obtaining a license even for occupations unrelated to the offense, a problem that has tended to grow as more and more positions in the economy are subject to licensure [Eric Boehm, Reason]
“And he disrespected the Wu-Tang Clan.”
Highlights from the jury selection process in the Martin Shkreli case. “More than two hundred potential jurors were excused from the trial.” [Harper’s]
Update: jury acquits in Nevada Bundy standoff
“For the second time this year, the federal government tried and failed to convict four men who joined the high-profile Bundy family in its 2014 [Nevada] standoff with federal agents in a dispute over grazing fees for cattle.” Two defendants were acquitted of all charges, and two others were acquitted of most with the jury hanging on the remainder. [Melissa Etehad and David Montero, L.A. Times] Both the armed Nevada standoff, and the later Bundy family takeover of the unoccupied Malheur wildlife refuge in Oregon, played at the time as big crisis stories. Despite the weakness of many of the underlying legal claims about land advanced by the protesters, federal prosecutors have struggled to obtain convictions; the Oregon takeover resulted in acquittals in October [our earlier coverage] [revised and corrected; an earlier version of this post had been based on confused chronology]
Supreme Court and constitutional law roundup
- Litigating the boundaries of religious liberty: Tunku Varadarajan interview/profile with Becket Fund’s Montse Alvarado [WSJ] And mark your calendar for Sept. 28, Cato’s inaugural day-long conference “The Future of the First Amendment” at which I’ll be on a panel on religious liberty;
- What Hamilton wrote: archive find casts further doubt on theory President isn’t “officer” subject to Emoluments Clause [Brianne Gorod, Take Care] Broad definition of emoluments in suit against Trump might trip up its own lead plaintiff, Connecticut Sen. Richard Blumenthal [Michael Stern] “There is nothing wrong with Justice Gorsuch speaking at the luncheon despite its venue.” [Steve Lubet on Trump-Hotel-as-speech-venue flap]
- Duties of celebration: Cato amicus urges SCOTUS to consolidate Arlene’s Florist with Masterpiece Cakeshop case [Ilya Shapiro and David McDonald]
- Maryland gun ban unconstitutionally broad, argue Randy Barnett and Dave Kopel in Cato amicus [Shapiro, Kopel, and Matthew Larosiere] Restore rights to a rehabilitated felon? Sure, says Maryland, but not gun rights. Constitutional check [Shapiro]
- Federalist Society’s annual Supreme Court roundup speech for last term, by Miguel Estrada, is now online. Unfinished business: 10 certiorari petitions from last term SCOTUS justices should have granted [Mark Chenoweth, WLF] And don’t forget to mark your calendar for Cato’s Constitution Day Sept. 18;
- By 2019, constitutional law discussions at America’s top law schools were being conducted entirely in emoji [@tribelaw on Twitter on “First or Second Amendment, pick one” question of whether persons assembling for political protest have right to bear arms at the same time]
Seattle landlords aren’t to know about would-be tenants’ criminal records
“The Seattle City Council approved an ordinance Monday that will mostly prohibit landlords from screening tenants based on their criminal records. Landlords will be barred from excluding people with records in advertisements. When taking applications, they will be barred from asking about records. And in choosing tenants, they will be barred from rejecting people due to their records.” [Daniel Beekman, Seattle Times] Now with more re-education: “Any participation in this ‘conciliation’ process also mandates landlords attend anti-bias training courses.” [Christian Britschgi, Reason]
A win on pretrial asset freezes
Not only a good ruling from the Fourth Circuit, but a good unanimous en banc ruling: the Constitution does not permit the government to freeze untainted assets needed by a criminal defendant to prepare for trial [U.S. v. Chamberlain, with NACDL/Cato amicus brief]
L.A. jury blames ovarian cancer on baby powder, awards $417 million
Does the naturally occurring mineral talc, found in Johnson & Johnson’s baby powder, cause ovarian cancer? According to the National Cancer Institute last month:
The weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.
According to the American Cancer Society:
It has been suggested that talcum powder might cause cancer in the ovaries if the powder particles (applied to the genital area or on sanitary napkins, diaphragms, or condoms) were to travel through the vagina, uterus, and fallopian tubes to the ovary.
Many studies in women have looked at the possible link between talcum powder and cancer of the ovary. Findings have been mixed, with some studies reporting a slightly increased risk and some reporting no increase. Many case-control studies have found a small increase in risk. But these types of studies can be biased because they often rely on a person’s memory of talc use many years earlier. Two prospective cohort studies, which would not have the same type of potential bias, have not found an increased risk.
For any individual woman, if there is an increased risk, the overall increase is likely to very be small. Still, talc is widely used in many products, so it is important to determine if the increased risk is real. Research in this area continues.
On the other hand, some experts believe the risks are higher. Our contemporary American legal way of handling this disagreement is to submit the question in a series of high-stakes trials in venues selected by plaintiff’s lawyers, in which juries will listen to a battle of hired experts. On Aug. 21 a Los Angeles jury told Johnson and Johnson to pay $417,000,000 to Eva Echeverria, a 63-year-old California woman who was diagnosed with ovarian cancer in 2007. [ Margaret Cronin Fisk and Edvard Pettersson/Bloomberg, ABA Journal, Amanda Bronstad/NLJ, Alison Kodjak/NPR, Eric Lieberman/Daily Caller]
August 23 roundup
- Crash-faking for insurance money, long a U.S. problem, happening in U.K. too [Legal Futures, Telegraph, compare]
- $5000 and an apology for a racist comment on AirBnB? Sounds good. Community service? Even better. A college course too? Why not? Plus more community service? Sure! [The Guardian, ABA Journal; settlement presided over by California state agency]
- Encyclopedia of Libertarianism now free online thanks to Cato Institute. My contribution was on Thomas Macaulay;
- Conservatives! Victory lies within reach! All you need to give up are your principles! [Jeremy Carl and Mark Krikorian, NRO, on idea of regulating social media and Internet providers as public utilities; more from Electronic Frontier Foundation on the new wave of electronic de-platforming; related yesterday on business ostracism]
- Per Judge Easterbrook, caption tells story of case: “The City of South Bend, Indiana, is suing one of its constituent parts.” [City of South Bend v. South Bend Common Council, Seventh Circuit]
- “Difficulty proving ‘criminal intent’ should be ‘a severe, even disabling, obstacle to prosecution.'” [Caleb Kruckenberg on this New Yorker piece deploring lack of more white-collar convictions]