Overlawyered: Chronicling The High Cost Of Our Legal System

AAUP getting a little braver on Title IX?

The American Association of University Professors (AAUP), which has a record of sadly weak defenses of faculty rights in response to the feds’ efforts under Title IX to restrict due process accorded to persons accused of misconduct at universities (see last paragraph of my piece from 2013), might possibly show a little more spine in a pending report now in draft form. Citing a string of episodes, including what happened to Prof. Laura Kipnis at Northwestern as well as many that are less well known, the report acknowledges that the current Washington interpretation of Title IX “has had a chilling effect on academic freedom and speech” and “that the emphasis on complying with federal law has led to some professors being investigated by universities for making statements that some students find offensive but that the report says should be protected.” [Anemona Hartocollis/New York Times, Lizzie Crocker/Daily Beast, Scott Greenfield, Peter Wood/Minding the Campus] More from the NYT:

The association says the government should allow universities to use a “clear and convincing” standard of evidence in their internal reviews of sexual harassment complaints rather than the less strict “preponderance of evidence” standard now required. …The report says that the federal crackdown has poisoned the traditional relationship between faculty and students by turning professors from informal confidants into official enforcers.

Plus, new paper being widely talked about, “The Sex Bureaucracy,” by Jacob Gersen of Harvard and Jeannie Suk of Harvard Law, forthcoming in the California Law Review, abstract:

We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated area comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy essentially required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself. We call this “bureaucratic sex creep” — the enlargement of bureaucratic regulation of sexual conduct that is voluntary, non-harassing, nonviolent, and does not harm others. At a moment when it is politically difficult to criticize any undertaking against sexual assault, we are writing about the bureaucratic leveraging of sexual violence and harassment policy to regulate ordinary sex. …

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Estimate: $15 wage to cost California taxpayers $3.6 billion/year

The state of California’s legislative analyst projects that raising the state’s minimum wage to $15 an hour, as a pending deal among political bigwigs would do, would cost taxpayers $3.6 billion more a year in government pay [Associated Press] Related: California plan an experiment that’s sure to generate interesting data, too bad it’s being conducted on real people [David Henderson] “Labor is not a commodity like bread or electronics,” moralists claim. Funny how it is subject to economic laws all the same [Coyote]

More: “The $15 minimum wage sweeping the nation might kill jobs — and that’s okay.” So now they tell us [Lydia DePillis/WaPo via Noah Rothman, Commentary] Data from Europe: Steve Hanke, Cato 2014.

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False Claims Act jumps the guardrails in E.D. Tex.

A $680 million award in the plaintiff-friendly Eastern District of Texas illustrates some of the problems with the federal False Claims Act, the whistleblower law enabling bounty-hunting suits against government vendors and contractors [Ilya Shapiro, earlier here, here, and here]:

Trinity contends — and the alleged federal-agency victim agrees! — that the re-designed device, which passed all diagnostic tests, met all the safety criteria required by the FHWA, and therefore that the omission of the redesign failed to qualify as the sort of “false statement” required for liability under the FCA. Despite a warning from the U.S. Court of Appeals for the Fifth Circuit regarding the weakness of the FCA claims, a trial court in the eastern district of Texas—known for being a “judicial hellhole”—moved the case forward, to an eventual jury verdict for Harman.

The jury found Trinity liable for more than $680 million in damages, which is the largest damage award in FCA history. Out of the millions in damages and penalties, the court awarded Harman a 30% share of the recovery, plus almost $19 million in attorneys’ fees and expenses.

Cato has submitted a Fifth Circuit amicus brief “arguing that the jury’s finding of liability and damages were unsustainable under the law.”

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Bloomberg profiles Ted Frank

Ted Frank, who directs the Center for Class Action Fairness and was long a co-blogger here at Overlawyered, is the subject of this Bloomberg/BNA profile from Steven Sellers of Class Action Litigation Report. A master key to Ted’s analysis of class action settlement incentives? “The Posner and Easterbrook decisions on class actions… pervade everything I do,” he says, referring to economically informed Seventh Circuit judges Richard Posner and Frank Easterbrook, both also associated with the University of Chicago law school, where Ted studied. Chicken offsets get a mention, too.

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“N.J. lawmaker wants fines for ‘distracted walking’”

A bad idea, seen previously in proposals in New York and elsewhere, won’t go away: “The measure recently introduced by General Assembly member Pamela Lampitt (D) would ban walking while texting and bar pedestrians on public roads from using electronic communication devices that are not hands-free. Violators would face fines of up to $50, 15 days imprisonment or both, which is the same penalty as jaywalking.” While no states appear to have passed such enactments yet, New Jersey isn’t the only state where they’re being floated: “For instance, a bill pending in Hawaii would fine someone $250 for crossing the street with an electronic device.” [Bruce Shipkowski, AP/Washington Post]

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Friedrichs: SCOTUS declines to recognize public employee right to avoid union fees

Abood abides: a 4-4 Supreme Court split leaves in place earlier precedent providing that public employees can be required to pay union “agency fees” spent on activities of which they may not approve. Cato reactions: Trevor Burrus (“The lack of a blockbuster decision in Friedrichs is one of the most significant immediate consequences of Scalia’s death”), Jason Bedrick (“Not only do agency fees violate the First Amendment rights of workers by forcing them to financially support inherently political activities with which they may disagree (as my colleague Ilya Shapiro and Jayme Weber explained), but the unions often negotiate contracts that work against the best interests of the workers whose money they’re taking.”). Bonus: Charles C.W. Cooke (NEA president’s “Orwellian” words on case). Earlier here.

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Free speech roundup

  • Soon after reports that World Health Organization wants to keep kids from viewing classic films depicting smoking, purported class action lawsuit seeks damages from Hollywood for not instituting such a ratings policy [Courthouse News]
  • UK police arrest another man over dumb political tweet, defend our First Amendment to make sure such things don’t happen here in US [Telegraph] “How about we ‘defend European values’ by not arresting people who say stupid things?” [Brendan O’Neill, Spectator]
  • The monocle that blinked: New Yorker magazine now often found on wrong side of free speech issues [Jamie Kirchick/Commentary, earlier]
  • What does Donald Trump really think about suing the press? Ann Althouse goes line by line through what he told the Washington Post at an editorial board meeting [earlier here, here, etc.]
  • High court should step in against law regulating speech regarding ballot measures by small, low-budget groups [John Kramer, Institute for Justice on Justice v. Hosemann] Paul Sherman of Institute for Justice joins Trevor Burrus and Aaron Ross Powell for a discussion of the First Amendment, political and occupational speech [Libertarianism.org]
  • Merrick Garland’s record on First Amendment issues [Ronald Collins] State of play in the Supreme Court on First Amendment cases this term [same; published before 4-4 outcome in Friedrichs]

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Connecticut governor: let’s not tax Yale’s endowment, actually

“A tax proposed by top legislators on the earnings of Yale’s sizable endowment was shot down Tuesday by the administration of Gov. Dannel P. Malloy. …The proposal – backed by Senate President Pro Tem Martin Looney and Appropriations Committee Co-chair Toni Walker, both Democrats from New Haven – [had] generated national attention.” [Connecticut Mirror] I modestly proposed that Yale consider moving in part or full to some jurisdiction that would leave its endowment alone, much as General Electric, which had been the largest corporation headquartered in Connecticut, chose recently to toddle off to Boston in search of a better climate. Ira Stoll picked up and expanded on my idea in a column reprinted in the Hartford Courant, and Florida Gov. Rick Scott promptly got into the act by inviting Yale to relocate to the Sunshine State. More: Courant editorial (“Idea Of Yale Fleeing Taxes Makes Connecticut Look Bad”) And I’m interviewed in this WTNH story.

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