“Stealth” or “underground” regulation: Congress needs to step in

For decades federal agencies have been exerting their will through informal guidance documents, memoranda, “Dear Colleague” letters, rules imposed in settlement agreements with regulated entities, and so forth, all tending to dodge the constraints that the Administrative Procedure Act (APA) and similar laws apply to formal creation of regulations through rulemaking. The result is to evade requirements of openness, accountability to the public and courts, and norms of consistency, preannouncement and rationality in agency policy. (See discussion of subregulatory guidance, “underground” and “stealth” regulation here, here, and here)

Wayne Crews of the Competitive Enterprise Institute has a new paper documenting the extent of the problem and proposing a variety of ways Congress could exercise tougher oversight.

Filed under: regulation and its reform

California raises smoking age to 21

Young persons in California will have at least three years’ practice voting to take away the rights of other persons before they acquire a full set of rights themselves. [CNN]

P.S.: “Old enough to be executed, but not to have a final smoke. California logic.” [Scott Greenfield on Twitter]

Filed under: age of majority, California, smoking bans

Profs: considering credit history could violate rights of mentally ill

Various federal laws, including the Americans with Disabilities Act and Fair Housing Act, prohibit discrimination against disabled persons, and mental illness is a disability. And so — say three professors — businesses may be violating these laws by dinging credit applicants for poor credit history unless they make allowance for persons whose poor financial choices were the result of mental illness. Bonus: citation to authority of “United Nations Convention on the Rights of Persons with Disabilities (which the United States has signed)” [Christopher Guzelian, Michael Ashley Stein, and H. S. Akiskal, SSRN via @tedfrank]

Filed under: banks, disabled rights, housing discrimination, international law, mental disability, mortgages, United Nations

Nice shop you’ve got there. Mind turning over your camera system to us?

NYPD threatens immigrant-owned shops with closure using what are sometimes questionable nuisance abatement claims, then uses its leverage to push for warrantless access to information on customers. “Most cases resulted in settlements, 333 of which allow the NYPD to conduct warrantless searches. In 102 cases, the owner agreed to install cameras that the NYPD can access upon request. Another 127 settlements require storeowners to use electronic card readers that store customers’ ID information, also available to the NYPD upon request.” [ProPublica, Radley Balko, TechDirt]

Filed under: Fourth Amendment, NYC, police

Liability roundup

For thee but not for me? Lawprof proposes immunizing mass tort litigators from RICO liability [Mass Tort Litigation Blog]
Some reasons, even aside from PLCAA, the Sandy Hook lawsuit against gunmakers is so weak [Jacob Sullum]
One welcome, overdue development that deserves more attention than we’ve given it: federal courts adopt rules curtailing pretrial discovery [Institute for Legal Reform interview with former Colorado justice Rebecca Love Kourlis; Joe Palazzolo and Jess Bravin, WSJ]
Cloudy in Texas, with a chance of $1 million lawsuits blaming broken floor tiles on falling objects [Southeast Texas Record via Texans for Lawsuit Reform; Hidalgo County]
Billboards hawked Kentucky disability practice: “the law has finally caught up with ‘Mr. Social Security.’” [Louisville Courier-Journal]
Wall Street Journal covers trend of big plaintiff’s firms teaming up with more city governments to file “affirmative litigation” [WSJ] We were on this trend as early as the year 2000 [San Francisco and Philadelphia launch such operations in wake of tobacco settlement). On county governments as cat’s-paws for trial lawyers in lead paint, opioid, and other mass tort cases, see coverage of California’s Santa Clara County here, here, etc., and on Orange County here, here, etc.

Filed under: attorneys general, discovery, Kentucky, opioids, Protection of Lawful Commerce in Arms Act, sanctions, Texas

“It’s None Of The Government’s Business If Facebook Hates Conservatives”

No, Sen. Thune (R-S.D.), a U.S. lawmaker shouldn’t be firing off a letter to Facebook insisting that it account for the alleged political slant of its judgment in selecting content. As for supposed victims of the practice, writes Amy Alkon, “if your news comes from the tiny trending bits on the sidebar of Facebook, you’re about as informed politically as my desk lamp, and I ask that you not vote.”

Filed under: Facebook, First Amendment, social media

Constitutional law and a President Trump

One incidental impact of a Trump presidency: mainstream law professors would develop a sudden, strange new respect for constitutional law concepts such as separation of powers and federalism, which tend to serve as checks on the power and ambition of the President and his backers. [Paul Horwitz, PrawfsBlawg]

Filed under: constitutional law, Donald Trump, executive orders, federalism, law schools

NYC mulls tax dollars for farmland preservation

Even as absurd NYC policy ideas go, this one’s a doozy [Seth Barron, City Journal]:

To encourage a “sustainable, resilient food system,” New York’s city council has proposed a $5 million municipal farm-subsidy program, under which the city would buy development easements in the Hudson Valley. In this way, the council plans to help feed “3 million New Yorkers liv[ing] in neighborhoods without adequate supermarkets.” It’s alarming to consider that New York could suffer food shortages so acute that the city government must establish its own agricultural supply chain.

EDITED, see comments: Correspondent Carl Edman shares an anecdote on Twitter of a Soviet dignitary visiting London who asked about the bureau in charge of food supply to the city “and was shocked when told that there was no such thing and nobody in charge. At least that won’t happen in future NYC!”

Filed under: agriculture and farming, eat drink and be merry, NYC

May 12 roundup

“Days after Nooksack Judge Susan Alexander ruled against the tribal council, she was fired.” [Seattle Times, earlier]
Alabama’s Roy Moore not a good exemplar of the rule of law, part 23 [Kyle Whitmire/AL.com, earlier]
Failed small municipalities around St. Louis may need cleanup, yet consolidation is no cure-all either [Aaron Renn, Urbanophile]
In doubly aggressive legal stance, Obama DoJ claims controversial North Carolina bathroom law violates federal law, threatens state with fund cutoff unless repealed pronto [Scott Shackford, Reason]
“Vice Media Sends Cease And Desist To [Indie Rock Band] ViceVersa Over Trademark Infringement” [TechDirt]
“Federal regulation is a hidden tax at nearly $15,000 per U.S. household each year.” [Wayne Crews, Competitive Enterprise Institute “Ten Thousand Commandments” for 2016; Ron Bailey on Mercatus study]

Filed under: Alabama, Indian tribes, Missouri, regulation and its reform, trademarks

FDA issues menu labeling mandate

Vaping isn’t the only issue on which the Food and Drug Administration has stopped its ears to distress cries from the regulated community. It has now followed through with a stringent rather than lenient version of the menu labeling concept mandated by the ObamaCare law, one that will extend coverage to doubtful areas including some restaurant coupons and advertisements and ensure burdensome compliance issues for variety items such as toppings on pizza or ice cream. [CS News, Elizabeth Harrington/Free Beacon, earlier]

Filed under: FDA, ObamaCare, restaurants