- Citation nation: abuse of fees and fines erodes legitimacy and accountability in local government [C. Jarrett Dieterle, City Journal]
- If concept of obstruction of justice is not to do injustice itself, it must be confined to a limited number of well-defined offenses [Tim Lynch, Cato]
- “Drug recognition experts” deployed at traffic stops have a reliability problem, and that can put innocent people behind bars [11Alive Atlanta, Ed Krayewski] Zero-tolerance THC: Unimpaired driver gets six months for fatal crash she did not cause [Jacob Sullum]
- New York Senate approves bill to make police protected group for purposes of hate crime law; similar proposals have become law in Louisiana, Kentucky, and Mississippi [Tim Cushing/TechDirt, earlier here and here]
- Now renamed “trafficking”: “Why Governments Always Exaggerate the Prostitution Threat” [Camilo Gómez, FEE, related Libertarianism.org podcast with Elizabeth Nolan Brown]
- Some problems with requiring “racial impact statements” for new bills on criminal justice [Roger Clegg and Hans von Spakovsky, NRO, James Scanlan, Federalist Society blog]
Employee caught vacationing while on medical leave can sue over firing
Jon Hyman on the Eleventh Circuit case of Jones v. Gulf Coast Health Care:
Suppose you have an employee who takes FMLA leave for rotator-cuff surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. Or, more accurately the employee’s co-workers saw the photos and ratted him out to management.
So, what do you do?
Fire the employee for abusing and/or misusing FMLA leave by engaging in activities (verified by pictures posted on his Facebook page) that demonstrated his ability to return to work earlier than the end of the FMLA leave.
Tread lightly, however, before making that decision, for in Jones v. Gulf Coast Health Care, the 11th Circuit Court of Appeals concluded that based on these same facts, Rodney Jones was entitled to a jury trial on his FMLA retaliation claim….
Full story here.
Labor and employment roundup
- New York City embarks on extensive new regulation of freelance work [Jennifer A. Williams, Ford Harrison]
- “Maryland Decriminalizes Unlicensed Barbering; Jacks Up Fines for Unlicensed Barbering” [Eric Boehm, Reason] “A New Jersey Bill Protects Pool Owners from Low Prices” [Shoshana Weissman, NRO on licensing of pool/spa service contractors and installers]
- “Lawsplainer: How The Seventh Circuit Decided That Sexual Orientation Discrimination Violates Federal Law” [Ken at Popehat, earlier here, here, and here]
- New Jersey taxpayers pay $100 million+ a year to resolve public worker lawsuits [Mark Mueller, NJ.com]
- “How the Fair Labor Standards Act Hurts Women” [Heather Owen/Constangy Brooks, thanks for mention] More on comp time: Diana Furchtgott-Roth, WSJ MarketWatch; Connor Wolf, Inside Sources.
- Browning-Ferris at the NLRB: “Predictable, Uniform Standard Needed for Who Is a Joint Employer” [Michael Lotito and Missy Parry, WLF, earlier here, here, here, here, here, and here]
“Ohio political commentators sue over online harassment ban”
The Ohio legislature last summer unanimously enacted, and Gov. John Kasich signed, a law prohibiting “knowingly posting text or audio statements or images on a website ‘for the purpose of abusing… or harassing another person.'” Now plaintiffs of several political stripes have joined in a legal challenge alleging that they or their organizations “‘routinely engage’ in protected speech that ‘may be considered provocative'” and that the law is so vaguely and broadly worded as to subject them to “a credible risk of prosecution.” The suit was initiated by UCLA law professor Eugene Volokh with assistance from his First Amendment Amicus Brief Clinic. [AP/WHIO]
Kindred Nursing Centers: SCOTUS hasn’t soured on arbitration
The Litigation Lobby may despise arbitration that is contractually agreed to before a dispute, editorialists may denounce it, and legal academics may deprecate it, but the U.S. Supreme Court shows no signs of cooperating in plans to snuff it out. In Kindred Nursing Centers Limited Partnership v. Clark, the latest of several cases in which it has state supreme courts that strayed from its guidance, the high court struck down a legal interpretation by the Kentucky courts “under which a general power of attorney, valid to authorize the execution of contracts generally, would not validly authorize execution of an arbitration agreement unless the power of attorney explicitly addressed that topic.” [Ronald Mann, SCOTUSBlog]
For me, the 7-1 vote was the most salient thing about this decision. All of the participating justices agreed except for Justice Clarence Thomas, who could not endorse the outcome based on his longstanding view that the FAA does not apply in state courts. By contrast, the vote last year in the quite similar case of Imburgia was 6-3. Perhaps the justices were motivated here less by their views about the FAA than by their views about the proper response to insincere state supreme courts.
May 24 roundup
- “Court: Lawyer Who Gave Himself Award Can’t Sue People Who Reported He Did That” [Lowering the Bar]
- ADA reform moves closer to governor’s desk in Texas [Texans Against Lawsuit Abuse, HB 1463, Texas Restaurant Association; recent Arizona reform]
- Of many effects of rising tide of state attorney general activism, count wider standing for states as one [Paul Nolette, Law and Liberty]
- If towns like Palmdale didn’t realize that California law now puts them under pressure to adopt districted rather than at-large council elections, entrepreneurial Malibu lawyer is there to present $4.6 million reminder [Robin Abcarian, L.A. Times]
- Choice of law school commencement speakers tracks familiar notions of which ideas are respectable and which not [John McGinnis, Law and Liberty]
- “Treating [dogs] as products for product liability purposes creates some significant problems.” [Nick Farr, Abnormal Use]
Drop that iced tea and back away
According to coverage at places like NPR and CNN, an innovative campaign in Howard County, Maryland “provides a road map for other communities to reduce consumption of sugary drinks.” Not so fast, I argue in my new Washington Examiner piece: the suburban county in question is not remotely typical of America as a whole, the Howard County Unsweetened campaign blurred public and private boundaries in a dubious way, and the whole enterprise generated a deserved political pushback. While the plan, promoted by the local Horizon Foundation, might not have been all bad, “it sowed divisiveness, put government resources to improper purpose, and rested on a premise of frank paternalism. When it arrives in your community, you might want to respond as you might to a second pitcher of cola — by pushing it away with a polite, ‘no thanks.'”
Oklahoma enacts loser-pays — by mistake
Is that good news, or not? My new post at Cato at Liberty:
According to news reports last week, the legislature in Oklahoma passed, and Gov. Mary Fallin then signed, a bill whose wording directs judges to award reasonable attorneys’ fees and costs in cases of civil litigation. The provision was part of a bill on certain child abuse lawsuits, and its Senate sponsor said it was believed that the fee provision applied only to those cases until on a closer reading “it seems evident that it makes all civil cases … loser pays,” said Sen. David Holt. “But nobody caught that.”
As someone who has been writing in favor of the loser-pays principle since my first book, The Litigation Explosion, you might expect my reaction to this news (once I stopped laughing) to be positive. After all, there’s nothing wrong with a legislature enacting good policies through inadvertence. (For some legislatures, that seems to be the only way they do enact good policies.)
Sober second thoughts, however, will be less cheerful….
Whole thing here. More: Lowering the Bar.
California memorabilia law could tank small bookstores
Author signings are an important source of traffic for many small community bookstores, but the new California law discussed in this space last year could make them impractical. The bill requires that retailers provide witnessed certificates of authenticity for signed items of value, which must record extensive information on matters such as the size of the edition and price paid, all on pain of steep penalties. They must also retain the resulting paperwork for seven years and will be subject to bounty-hunting suits by “private attorney general” attorneys. The bill’s sponsor apparently did not realize it would apply to signed books. Now Pacific Legal Foundation is challenging the statute in a lawsuit on behalf of San Francisco’s Book Passage store, co-owned by lawyer Bill Petrocelli. [Anastasia Boden, PLF Blog]
Soon, tumbleweeds in E.D. Tex.? SCOTUS strikes at patent forum-shopping
This morning’s Supreme Court opinion in TC Heartland v. Kraft Foods, hinging on what I described in January as a dry point of statutory interpretation, is likely to stand as a landmark win for defendants in patent litigation – and, on a practical level, for fairer ground rules in procedure. A unanimous Court (8-0, Thomas writing, Gorsuch not participating) rejected the broad reading of a venue statute by which the Federal Circuit had empowered lawyers to forum-shop disputes from all over the country into a few decidedly pro-plaintiff venues, above all the largely rural Eastern District of Texas. From here out, defendants can still be sued in a district such as E.D. Tex. if they have a regular and established place of business in it, but the decision is likely to shrink what I called in my January preview a “jackpot patent litigation sector… that shifts around billions of dollar.” By redirecting cases into more neutral venues, it should bring outcomes closer to reflecting cases’ actual merits, which would in turn do much toward restoring confidence in this sector of the law.
If Congress believes the Court has erred it is free to restore patent venue to a more shopper-friendly set of rules. But after the experience of recent years, it is unlikely that a Congress of either party or any likely political complexion will have an appetite for doing that.
[cross-posted from Cato at Liberty] More: Mike Masnick, TechDirt; Daniel Nazer, EFF. [& welcome SCOTUSBlog, Washington Post readers]