Relaxing the ABA’s rules on law school faculty structure

The American Bar Association is proposing easing its mandate that law schools use full-time faculty for at least one-half of courseload; the new minimum would be one-third. The shift would be a step toward reviving the once-common and generally less expensive model of law school oriented more toward training-for-practice and less toward scholarship and research. I recommended similar reforms in Schools for Misrule. [Paul Horwitz; Paul Caron and links]

Labor and employment roundup

  • Just another day on the one-way-attorney’s-fee beat: after $87K cop-discrimination verdict, lawyer wants $2.2M award [NJ.com]
  • U.S. Chamber white paper on needed fixes in labor law [Jon Hyman and report, “Restoring Common Sense to Labor Law: 10 Policies to Fix at the National Labor Relations Board”]
  • California employee-seating class actions begin paying off, $700,000 against Abercrombie & Fitch [Ford Harrison, earlier]
  • And good riddance: Trump signs CRA bill repealing labor blacklisting rule for federal contractors [Kathy Hoekstra/Watchdog, Trey Kovacs/CEI, Ford Harrison, earlier, background via PLF]
  • Trend worth resisting, if true: transnational norms emanating from International Labour Organization etc. said to be increasingly shaping U.S. labor law [James Brudney via Employment Law Prof]
  • To protect free speech and jobs, cut the EEOC’s budget [Hans Bader]

Third Circuit: neighbors who criticized condo residents over emotional support dogs must face civil rights suit

In blog posts and comments, two residents of a Virgin Islands condominium complex criticized two other residents who were (in line with rights prescribed to them under federal law) keeping emotional-support dogs despite a no-dog rule in the complex. Among other statements, one or the other of the two said dog owners would be “happier in another community,” speculated that “diploma mill” paperwork could certify any canine whose owner cared to claim stress, suggested the complex should “lawyer up” and be prepared to go to court to defend its rule against “known violators,” and proposed the dog owners be “ostracized” by other residents.

The dog-owning residents sued the neighbors, along with the condo association and other defendants. They cited federal legal interpretations, which have since been buttressed by a regulation issued in the Obama administration, that hold it “hostile environment harassment” under the Fair Housing Act to make statements that “interfere” with another’s exercise of rights under the law.

Now the Third Circuit, as part of a decision resolving numerous issues about the case, reversed grants of summary judgment in favor of the two blog writers and ruled that they could properly be sued for damages for creating a hostile environment under the Fair Housing Act. It described as “harassment” various instances of their critical speech and noted that a single instance of harassing speech could give rise to liability under the law. It is not clear whether the parties raised, and the court did not make any gesture toward considering, whether some or all of the statements involved might be protected by the First Amendment, which is mentioned nowhere in the opinion. [Revock v. Cowpet Bay West Condominium Association et al., see relevant section VI, pp. 31-41 of opinion via John Ross, Short Circuit]

As Hans Bader of the Competitive Enterprise Institute has pointed out, the Ninth Circuit in 2000 slapped down federal officials for having investigated Berkeley, Calif. residents who had fought a housing project that they believed would bring mentally ill residents or recovering substance abusers (both protected as disabled under the Fair Housing Act) to their neighborhood. “It found this principle was so plain and obvious that it denied individual civil rights officials qualified immunity for” having investigated the citizens. That case [White v. Lee] would appear to stand for the proposition that the First Amendment provides robust protection for much speech that criticizes, opposes, and disparages others’ exercise of rights under the Fair Housing Act, and that the speech does not lose protection just because others regard it as retaliatory or discouraging to the exercise of rights.

More: Hans Bader, Scott Greenfield, and Eric Goldman, who got to the case before either of us.

April 12 roundup

  • Judge denies motion to dismiss in Kentucky Trump rally violence suit, now try explaining what that means to some headline writers [Ken White, Popehat]
  • False liens, threats of “arrest” cited in indictment of eight Colorado sovereign citizens [Boulder Daily Camera]
  • How virtual reality (VR) may give rise to tort claims [2-part Volokh Conspiracy: first, second]
  • D.C. Circuit: no, the FCC can’t enable lawsuits over “unsolicited” faxes that recipients did in fact agree to [NFIB]
  • Economist seems glad free online Berkeley courses got saved; ADA fans in comment section urge his firing, call him felon [Alex Tabarrok, MargRev]
  • With one in four of all patent cases going to a single federal judge in east Texas, forum-shopping is a menace to judicial impartiality [Jonas Anderson, SSRN]

When Truman seized the steel mills

65 years ago this week President Harry Truman by executive order seized control of the U.S. steel industry, then facing a labor impasse. The Supreme Court didn’t let him get away with it, despite his lawyers’ claims that the emergency arising from the Korean War, then in progress, gave him inherent power to act in the national interest. The case of Youngstown Sheet & Tube v. Sawyer was to set an outer bound on Presidential power, which continues to be felt in cases to this day. I’ve got a write-up at Cato at Liberty.

No-platforming Heather Mac Donald, and the emerging no-go campus

Last week a chanting mob at Claremont McKenna College in California successfully prevented a scheduled speech by prominent conservative author Heather Mac Donald, long a colleague of mine in my days at the Manhattan Institute. I’ve got a new piece at Minding the Campus discussing some of the impediments American universities face in effectively protecting visiting speakers, including one big problem with the threat, which is that much of it is coming from inside the building.

More: Heather Mac Donald’s own account; Andrew Sullivan last month; Steve Bainbridge; John McGinnis.

New: “How to stop politicians from gerrymandering”

I’ve got a new piece at the Institute for Humane Studies’ Learn Liberty explaining the basics of how politicians rig district lines to reward friends and punish foes, the entrenchment of an established political class that results, and how it might be combated. Snippet:

In a classic single-party gerrymander, the party in power packs opposition voters densely into as few districts as possible, thus enabling its own voters to lead by a comfortable margin in a maximum of districts. When a legislature is under split party control, the theme is often bipartisan connivance: you protect your incumbents and we’ll protect ours. Third-party and independent voters, as is so common in our system, have no one looking out for their interests….

Geographic information systems (GIS) methods now allow members of the public using inexpensive software to analyze the full data set behind a map. In several states, that has meant members of the public could offer maps of their own or make well-informed critiques of legislators’ proposed maps. In one triumph for citizen data use, the Pennsylvania Supreme Court invalidated a map drawn by lawmakers as clearly inferior to a map that had been submitted independently by an Allentown piano teacher.

Separately, I generally agree with what Aaron Blake writes in a new Washington Post piece: with so many other solid reasons to end gerrymandering, there’s no need to over-sell two arguments frequently invoked against it, the polarization thesis and the “GOP-fixed House” thesis.

On the much-noted trend in national politics toward ideological polarization, it seems clear that gerrymandering is but one contributing factor among many. The U.S. Senate, for which districting is not an issue, has followed a path not too far from that of the House, with virtually all Senate Democrats now to the left of virtually all Senate Republicans and stepped-up party-line cohesion on voting. And states with relatively fair districting maps have experienced polarization with the rest. So, yes, reform will probably make a difference at the margins for those who would like there to be more swing or contestable seats, but don’t expect miracles.

And while gerrymandering today on net benefits Republicans (which has not always been the case), it is probable for reasons Blake explains that fair/neutral districting would still have produced a GOP-run House in 2016. An important reason is that Democratic voters are so concentrated in cities.

For some of the many other reasons the cause is worth pursuing no matter which party (if any) you identify with, check out my IHS piece or, for somewhat more detail, my chapter on the subject in the new Eighth Edition of the Cato Handbook for Policymakers. I’ve previously written several pieces about my experience dealing with the problem in my own state of Maryland. [cross-posted from Cato at Liberty]

USA Today investigates ADA drive-by lawsuits

“[Florida resident Patricia] Kennedy is among a group of people with disabilities who in the last five years has filed more than 6,000 federal lawsuits against business owners whose premises violate the Americans with Disabilities Act of 1990. More than half of the lawsuits were filed by just 12 plaintiffs, including Kennedy.” Florida has been a hot spot for ADA filing mills for at least as long as I’ve been publishing this website, with independently owned businesses a typical target. [Melanie Payne, Fort Myers News-Press/USA Today]

Austin, Tex. proposal: $600 million housing fund earmarked for minorities

They might want to check ahead of time on whether this is constitutional: “A task force set up [by Mayor Steve Adler] to evaluate institutional racism in Austin is recommending the city create a fund with a goal of raising $600 million to buy and preserve affordable housing for minorities — giving preference to those previously displaced from gentrified areas.” [Elizabeth Findell, Austin American-Statesman]