In 2015 the city of Seattle passed a unique law imposing a collective bargaining law on Uber drivers and giving the city itself the power to select a union to represent the drivers. It chose the Teamsters Union, which already represented (competing) taxi drivers. Like the federal law of collective bargaining agreements, the city law purports to take away individual drivers’ rights to reach other deals, whether or not they voted for the union. “The Teamsters are allied with Yellow Cab and pushed for the 2015 ordinance requiring union negotiations.” Litigation in both state and federal court seeks to set aside the law on multiple grounds including pre-emption, antitrust, and privacy violation. [Daniel Fisher] More: WSJ editorial today.
Environment roundup
- “The river can’t stop people from throwing hooks in it, which seems like an important right for a legal person to have” [Lowering the Bar] “Just days after New Zealand declared the Whanganui River a legal person, the world’s population of river people (not people who live on the river, but rivers who are people) tripled, when a court in India waved its judicial wand and transformed the Ganges and Yamuna rivers” [same, follow-up]
- One way to make Vladimir Putin unhappy: support legal fracking in U.S. [Eric Roston, Bloomberg]
- Stadium subsidies for the Patagonia set: outdoor gear makers push federal Western land grabs [Terry Anderson]
- Washington Post account of Wyoming rancher Clean Water case might deserve a Pinocchio or two of its own [Jonathan Wood]
- “When should the federal government own land?” [Tyler Cowen]
- Missed this 2014 Los Angeles Times investigation into the story behind a federal raid on pot-hunters in the rural Southwest [“A Sting in the Desert“]
“What Kind of a Judge is Neil Gorsuch?”
New paper from Ilya Shapiro and Frank Garrison for the fledgling Cato Legal Policy Bulletin series, which launched in January with Thomas Berry’s paper “The Illegal Tenure of Civil Rights Head Vanita Gupta.” From the executive summary:
…President Donald Trump picked Gorsuch after promising the American people that he would appoint someone in the mold of the late Justice Antonin Scalia, who is best known for his devotion to the original meaning of the Constitution, his textualist approach to interpreting legal statutes, and his commitment to ordered liberty through constitutional structure. This policy bulletin weighs Judge Gorsuch’s record with respect to those ideals, ultimately asking whether a Justice Gorsuch would uphold the Constitution’s protection of individual liberty. A survey of Gorsuch opinions in cases involving criminal procedure, constitutional structure, and individual rights reveals an adherence to the rule of law. Moreover, Gorsuch has questioned legal precedent on the separation of powers—especially when it comes to the administrative state—in a way that shows a commitment to the judicial duty to check the other branches of government.
Other links on the nominee: A study of cases finds Neil Gorsuch in the middle of the pack among Tenth Circuit judges on employment discrimination and immigration [Kevin Cope and Joshua Fischman, Five Thirty-Eight] And the editors at the New York Daily News, one of the most outspokenly anti-Trump newspapers, say the Senate should confirm him:
In exchange after exchange with members of the Judiciary Committee, Gorsuch revealed himself to be not the caricature conjured up by Democrats, but a rigorous judicial practitioner with respect for the legislative process and for precedent….
Sen. Dianne Feinstein challenged Gorsuch on whether he “would give a worker a fair shot” — asking him to cite cases in which he stood up for the little guy, affirming his or her rights over that of a wealthy employer.
Gorsuch, off the top of his head, named 10….
Democrats are doing the nation a disservice by planning to filibuster his nomination….They should stand down.
March 29 roundup
- “SEAT Act: Top Senators Sponsoring Bill to Outlaw Low Cost Carriers, Raise Airfares” [Gary Leff, View from the Wing]
- “Trump’s Safe and Sane ‘Regulatory Reform’ Idea” [Cass Sunstein/Bloomberg, earlier Sunstein on Trump regulatory initiatives]
- Changing law and economics shape street protest [Tyler Cowen] Arizona’s bad idea on protestors involves racketeering charges, forfeiture, and more [Coyote]
- “Rights And Reality: Georgia Cop Jails Ex-Wife For Facebook Gripe” [Ken White, Popehat]
- “Opponents of same-sex marriage cynically…manufacture[d] a baseless controversy in the Texas Supreme Court” to attack City of Houston’s spousal benefits, but as the Hon. Jerry Smith of the Fifth Circuit had already stated in persuasive guidance, Obergefell “is the law of the land.” [Mark Pulliam, Law and Liberty; a second view from Josh Blackman]
- Idea making some headway: adapting use of class action and similar aggregate litigation procedures to administrative adjudication [Sergio Campos, Jotwell]
Split the Ninth Circuit?
A House Judiciary hearing airs both sides on the question of breaking up the very large and busy Ninth Circuit U.S. Court of Appeals [ABA Journal, earlier]
“The Story of Asbestos Litigation in Texas and Its National Consequences”
Texas was once the largest center of asbestos litigation in the U.S., with mass recruitment of workers claiming injury from past exposure although displaying no symptoms. Now, more than 40 years after the landmark Fifth Circuit Borel v. Fibreboard case which originated with a Beaumont worker’s complaint, Texas has enacted the nation’s most extensive legislation laying down rules for the conduct of asbestos litigation, much of it aimed at curtailing cases with poor evidence of causation or injury. A new report from Texans for Lawsuit Reform describes and defends the state’s actions.
Kentucky joins Louisiana in adding police to hate-crime protected group list
A police union’s national campaign continues to bear fruit as Gov. Matt Bevin signed a bill making Kentucky the second state, after Louisiana, to include police as a protected group in hate crime law. For principled conservative opponents of hate crime laws as a category, now would be a good time to speak up, wouldn’t it? [Beth Reinhard, WSJ] Such “Blue Lives Matter” bills continue to be introduced elsewhere around the country at both state and municipal levels [Julia Craven/Huffington Post, Tim Cushing/TechDirt]
Medical roundup
- “Texas Bill Would End ‘Wrongful Birth’ Suits Against Doctors” [Insurance Journal, earlier on wrongful birth]
- Worse outcomes mean more risk of being sued: “Doctors are refusing to operate on smokers.” [Karen Garloch, Charlotte Observer/Macon Telegraph]
- 2015 breakdown by state of medical malpractice suits per capita and aggregate payouts (the latter not broken down per capita, but with Northeastern states, as usual, far overrepresented) [Becker Hospital Review] Note: figures challenged, see comments;
- “…and the medical board voted to dismiss the complaint against you.” [Birdstrike, White Coat]
- Britain considers limiting cost (legal fee) awards in lower value medical claims [John Tingle, Harvard “Bill of Health”]
- Will not surprise those who’ve been around: pharma cos. might fight attempts at easing FDA drug introduction rules [Bloomberg] Muscular dystrophy patients can see the case for drug importation [Alex Tabarrok who is interviewed on the subject by Robert Gebelhoff] Related on FDA: Ronald Bailey, Reason.
Judge Posner and the much-too-pampered cats
Eike v. Allergan, a consumer class action certification case about allegedly over-generous allotments of fluid in eyedrop dispensers, raises two questions: how’d this case get past the motion-to-dismiss stage? And, second, how did Judge Richard Posner manage to go out on such a very extended cat metaphor in a case having nothing to do with cats? [Lowering the Bar, Chicago Tribune, ABA Journal]
“Are you now, or have you ever been, a member of the Federalist Society?”
Yes, Sen. Whitehouse, I am, proudly [Jonathan Adler/Volokh] We have earlier noted Sen. Whitehouse’s brutal efforts to subpoena and silence wrongthink in nonprofit and academic circles on climate issues.